09-1728-ag
Dolkar v. Holder
BIA
Nelson, IJ
A095 687 978
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 4 th day of March, two thousand ten.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 PETER W. HALL,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _______________________________________
12
13 KARMA DOLKAR,
14 Petitioner,
15
16 v. 09-1728-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Khagendra Gharti-Chhetry, New York,
24 New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Ernesto H. Molina, Jr.,
28 Assistant Director; M. Lee Quinn,
29 Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED, that the petition for review
4 is DENIED.
5 Karma Dolkar, a native and citizen of Tibet, 1 seeks
6 review of a March 27, 2009, order of the BIA affirming the
7 March 18, 2008, decision of Immigration Judge (“IJ”) Barbara
8 A. Nelson, which denied her application for asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Karma Dolkar, No. A096 687
11 978 (B.I.A. Mar. 27, 2009), aff’g No. A096 687 978 (Immig.
12 Ct. N.Y. City Mar. 18, 2008). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we review the
16 decision of the IJ as supplemented by the BIA. See Yan Chen
17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established. See
19 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey,
1
Tibet is now an “autonomous region” of China. See
U.S. Dep't of State, Bureau of East Asian Affairs,
Background Note: China,
http://www.state.gov/r/pa/ei/bgn/18902.htm (last visited
Feb. 18, 2010).
2
1 534 F.3d 162, 165-66 (2d Cir. 2008) ; Manzur v. U.S. Dep’t of
2 Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007).
3 I. Past Persecution: Adverse Credibility
4 Substantial evidence supports the agency’s
5 determination that Dolkar’s claim regarding her past
6 persecution, based on the alleged repeated rape of her
7 mother by Chinese police, was not credible . Under the
8 substantial evidence standard, “we defer to an IJ’s
9 credibility determination unless, from the totality of the
10 circumstances, it is plain that no reasonable fact-finder
11 could make such an adverse credibility ruling.” Xiu Xia
12 Lin, 534 F.3d at 167. For asylum applications governed by
13 the REAL ID Act, the agency may, considering the totality of
14 the circumstances, base a credibility finding on an asylum
15 applicant’s “demeanor, candor, or responsiveness,” the
16 plausibility of his or her account, and inconsistencies in
17 his or her statements, without regard to whether they go “to
18 the heart of the applicant’s claim.” 8 U.S.C.
19 § 1158(b)(1)(B)(iii). Although the agency must consider an
20 explanation the applicant offers for inconsistencies in the
21 record, it need not credit that explanation unless a
22 reasonable fact-finder would be compelled to do so. See
3
1 Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
2 Here , the agency based its adverse credibility
3 determination on inconsistencies and implausible testimony
4 in the record including: (1) the inconsistency between
5 Dolkar’s testimony that the police raped her mother two to
6 three times a week over six months and a letter from her
7 mother making only a veiled reference to being raped on one
8 occasion; (2) the inconsistency between Dolkar’s testimony
9 that she witnessed her mother being raped and her later
10 testimony that her mother told her about the rapes over the
11 phone when she was already in the U.S.; (3) the
12 inconsistency between Dolkar’s testimony that she is a
13 citizen of Tibet and her “Green Book” which states she is a
14 citizen of Nepal; and (4) the inconsistency between her
15 statement at her airport interview that she came to the U.S.
16 to find a job and “earn some money,” and her testimony that
17 she intended to come to the U.S. to seek asylum. Such
18 inconsistencies were an adequate basis for the agency’s
19 adverse credibility determination. See 8 U.S.C.
20 § 1158(b)(1)(B)(iii). To the extent that Dolkar offered
21 explanations for any of the inconsistencies, the agency was
22 not compelled to credit them. See Majidi, 430 F.3d at 80-
23 81.
4
1 II. Well-Founded Fear: Burden of Proof
2 Substantial evidence also supports the agency’s finding
3 that Dolkar failed to establish a well-founded fear of
4 persecution based on an alleged pattern or practice of
5 persecution of Buddhist Tibetan nationals by the Chinese
6 government. To establish asylum eligibility based on future
7 persecution, an applicant must show that he or she
8 subjectively fears persecution and that this fear is
9 objectively reasonable. Ramsameachire v. Ashcroft, 357 F.3d
10 169, 178 (2d Cir. 2004). Moreover, an applicant is not
11 required to demonstrate that she would be individually
12 singled out for persecution if she can demonstrate a pattern
13 or practice of persecution of a group of persons similarly
14 situated to her on account of a protected ground and her own
15 inclusion in or identification with that group. See
16 8 C.F.R. §§ 208.13(b)(2), 208.16(b)(2); Mufied v. Mukasey,
17 508 F.3d 88, 91 (2d Cir. 2007); Kho v. Keisler, 505 F.3d 50
18 (3d Cir. 2007).
19 Contrary to Dolkar’s argument, the agency explicitly
20 considered the background evidence in finding that she
21 failed to establish a pattern or practice of persecution.
22 See Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006).
23 While Dolkar asserts that she is entitled to
5
1 withholding of removal from Nepal , the agency reasonably
2 concluded that the record indicated that it is typically
3 recent refugees that are subject to harm in Nepal. See Xiao
4 Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 n.17 (2d
5 Cir. 2006) .
6 Finally, Dolkar’s argument that the agency erred in
7 failing to address separately her CAT claim fails because
8 her CAT claim is based on the same factual predicate as her
9 asylum and withholding of removal applications, and the
10 agency’s denial of those claims necessarily precluded her
11 from establishing eligibility for CAT relief. See Xue Hong
12 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.
13 2005).
14 For the foregoing reasons, the petition for review is
15 DENIED. As we have completed our review, any stay of
16 removal that the Court previously granted in this petition
17 is VACATED, and any pending motion for a stay of removal in
18 this petition is DISMISSED as moot. Any pending request for
19 oral argument in this petition is DENIED in accordance with
20 Federal Rule of Appellate Procedure 34(a)(2), and Second
21 Circuit Local Rule 34.1(b).
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
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