10-963-ag (L)
Kaur v. Holder
BIA
Videla, IJ
A077 998 037
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 27th day of March, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 ROBERT D. SACK,
10 REENA RAGGI,
11 Circuit Judges.
12 _______________________________________
13
14 GURSHARN KAUR,
15 Petitioner,
16
17 v. 10-963-ag (L);
18 10-4036-ag (Con)
19 NAC
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _______________________________________
24
25 FOR PETITIONER: Gursharn Kaur, pro se, Syosset, NY.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; David V. Bernal, Assistant
29 Director; Lauren E. Fascett, Trial
30 Attorney, Office of Immigration
31 Litigation, United States Department
32 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of these petitions for review of
2 Board of Immigration Appeals (“BIA”) decisions, it is hereby
3 ORDERED, ADJUDGED, AND DECREED, that the petitions for
4 review are DENIED.
5 Gursharn Kaur, a native and citizen of India, seeks
6 review of a February 25, 2010, order of the BIA affirming
7 the March 20, 2008, decision of Immigration Judge (“IJ”)
8 Gabriel C. Videla, which denied her application for asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”); and review of a September 20, 2010,
11 decision of the BIA denying her motion to reopen. In re
12 Kaur, No. A077 998 037 (B.I.A. Feb. 25, 2010), aff’g No.
13 A077 998 037 (Immig. Ct. N.Y. City Mar. 20, 2008); In re
14 Kaur, No. A077 998 037 (B.I.A. Sept. 20, 2010). We assume
15 the parties’ familiarity with the underlying facts and
16 procedural history in this case.
17 I. Adverse Credibility Determination
18 Under the circumstances of this case, we have reviewed
19 the decision of the IJ as supplemented by the BIA. See Yan
20 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
21 applicable standards of review are well-established. See
22 Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008);
23 Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d Cir. 2007).
2
1 The agency’s adverse credibility finding was based on
2 an accumulation of factors, including the inconsistencies
3 [i] between Kaur’s testimony and her asylum application as
4 to what occurred on the occasions she allegedly interacted
5 with Indian police, and [ii] among her airport interview,
6 asylum application, and testimony as to whether the Indian
7 government had caused the disappearance of her siblings due
8 to their support of the Khalistan movement, or indeed as to
9 whether or not she had any siblings. The cumulative effect
10 of these numerous inconsistencies is substantial when
11 measured against the record as a whole. See Tu Lin v.
12 Gonzales, 446 F.3d 395, 402 (2d Cir. 2006).
13 Given the inconsistencies and lack of corroboration,
14 the agency’s adverse credibility finding is supported by
15 substantial evidence. See Secaida-Rosales v. INS, 331 F.3d
16 297, 308-09 (2d Cir. 2003). As the only bases for relief
17 depended upon Kaur’s credibility, the adverse credibility
18 determination in this case necessarily precludes asylum,
19 withholding of removal, or CAT relief. See Paul v.
20 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v.
21 U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).
22
3
1 II. Motion to Reopen
2 The BIA did not abuse its discretion by denying Kaur’s
3 timely motion to reopen. See Ali v. Gonzales, 448 F.3d 515,
4 517 (2d Cir. 2006). Kaur moved the BIA to reopen her
5 proceedings on the ground that her application for
6 adjustment of status was pending before United States
7 Citizenship and Immigration Services (“USCIS”). As Kaur
8 acknowledged, because she is an arriving alien, USCIS has
9 the sole authority to adjudicate her adjustment application.
10 See Sheng Gao Ni v. BIA, 520 F.3d 125, 129 (2d Cir. 2008).
11 Although an outstanding removal order does not bar
12 adjustment for an arriving alien, see Matter of Yauri, 25 I.
13 & N. Dec. 103, 107 (B.I.A. 2009), execution of that order
14 does bar adjustment, see 8 C.F.R. § 245.2(a)(4)(ii)(A);
15 Sheng Gao Ni, 520 F.3d at 131. Accordingly, as Kaur has
16 acknowledged, a motion to reopen with the BIA in this
17 situation is simply a means of requesting a stay of removal.
18 See Yauri, 25 I. & N. Dec. at 108-09.
19 Consequently, the BIA reasonably construed Kaur’s
20 motion as one to stay the execution of her removal order,
21 and then gave a rational explanation as to why it declined
22 to grant the request, that: (1) the only relief it could
4
1 provide to Kaur would be a stay of removal; (2) Kaur had not
2 demonstrated or asserted that the Department of Homeland
3 Security (“DHS”) was seeking to effectuate her removal while
4 her application was pending; and (3) if DHS should seek to
5 effectuate her removal, she could address a request for a
6 stay of removal to DHS. Because the BIA provided this
7 explanation, which was responsive to the relief Kaur sought,
8 it did not abuse its discretion by denying Kaur’s motion to
9 reopen.* Cf. Sheng Gao Ni, 520 F.3d at 129-30.
10 For the foregoing reasons, the petitions for review are
11 DENIED. As we have completed our review, any stay of
12 removal that the Court previously granted in these petitions
13 is VACATED, and any pending motion for a stay of removal in
14 these petitions is DISMISSED as moot. Any pending request
15 for oral argument in these petitions is DENIED in accordance
16 with Federal Rule of Appellate Procedure 34(a)(2), and
17 Second Circuit Local Rule 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
21
22
23
*
Kaur asserts that the BIA’s denial of her motion to
reopen was contrary to this Court’s decision in Freire v.
Holder, 647 F.3d 67 (2d Cir. 2011). However, the
petitioner in Freire was seeking continuance of an
ongoing proceeding, not reopening after a final order of
removal had been entered. 647 F.3d at 70.
5