11-1288-ag
Kelvin v. Holder
BIA
Vomacka, IJ
A089 253 381
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 11th day of April, two thousand twelve.
5
6 PRESENT:
7 JON O. NEWMAN,
8 JOSEPH M. McLAUGHLIN,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _______________________________________
12
13 RODNEY ROSS KELVIN,
14 Petitioner,
15
16 v. 11-1288-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Scott E. Bratton, Margaret Wong &
24 Associates, Cleveland, OH.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Lyle D. Jentzer, Senior
28 Litigation Counsel; Jeffrey L.
29 Menkin, 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 DISMISSED in part and DENIED in part.
5 Rodney Ross Kelvin, a native and citizen of Malaysia,
6 seeks review of a March 21, 2011, decision of the BIA
7 affirming the December 12, 2008, decision of the Immigration
8 Judge (“IJ”), which pretermitted his application for asylum
9 as untimely and denied his applications for withholding of
10 removal and relief under the Convention Against Torture
11 (“CAT”). In re Rodney Ross Kelvin, No. A089 253 381 (B.I.A.
12 Mar. 21, 2011), aff’g No. A089 253 381 (Immig. Ct. N.Y. City
13 Dec. 12, 2008). We assume the parties’ familiarity with the
14 underlying facts and procedural history in this case.
15 We have considered both the IJ’s and the BIA’s opinions
16 “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d
17 233, 237 (2d Cir. 2008)(citation omitted). The applicable
18 standards of review are well established. See 8 U.S.C.
19 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
20 (2d Cir. 2009).
21 We lack jurisdiction to review the agency’s finding
22 that the Petitioner’s asylum application was untimely under
23 8 U.S.C. § 1158(a)(2)(B), or its finding that there existed
2
1 neither changed circumstances nor extraordinary
2 circumstances excusing the untimeliness. See 8 U.S.C.
3 § 1158(a)(3). Although we retain jurisdiction to review
4 constitutional claims and “questions of law,” see 8 U.S.C. §
5 1252(a)(2)(D), Kelvin’s challenge to the IJ’s finding that
6 he did not establish changed circumstances is simply a
7 challenge to the agency’s fact-finding determination and
8 exercise of discretion, over which we do not have
9 jurisdiction. See 8 U.S.C. § 1158(a); Xiao Ji Chen v. U.S.
10 Dep’t of Justice, 471 F.3d 315, 330-31 (2d Cir. 2006).
11 Accordingly, because Kelvin has abandoned any challenge to
12 the agency’s denial of CAT relief, the only issue before us
13 is whether the agency erred in denying withholding of
14 removal.
15 For applications for withholding of removal such as
16 Kelvin’s that are governed by the REAL ID Act of 2005, the
17 agency may, considering the totality of the circumstances,
18 base a credibility finding on an asylum applicant’s
19 “demeanor, candor, or responsiveness,” the plausibility of
20 his account, and inconsistencies in his statements, without
21 regard to whether those inconsistencies go “to the heart of
22 the applicant’s claim.” See 8 U.S.C. § 1158(b)(1)(B)(iii);
23 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).
3
1 This Court “defer[s] . . . to an IJ’s credibility
2 determination unless, from the totality of the
3 circumstances, it is plain that no reasonable fact-finder
4 could make such an adverse credibility ruling.” Id. at 167.
5 Here, substantial evidence supports the agency’s
6 adverse credibility determination. As the agency found,
7 Kelvin’s testimony that he first sought assistance in filing
8 his asylum application in March 2007 was inconsistent with
9 his written statement indicating that he tried to apply for
10 asylum through an “agent” in December 2006, his testimony
11 and written statement regarding the alleged March 2007
12 return visit of the Muslim Religious Officers was
13 implausible because the officers had not taken issue with
14 him during his approximately 50 other prior proselytizing
15 experiences and because a year had elapsed since their
16 previous visit, and the omission in his asylum application
17 regarding the motivation of the Muslim Religious Officers to
18 threaten him because they believed him to be a Muslim went
19 to the heart of his asylum claim. See Wensheng Yan v.
20 Mukasey, 509 F.3d 63, 67 (2d Cir. 2007); Cheng Tong Wang v.
21 Gonzales, 449 F.3d 451, 435-54 (2d Cir. 2006). Kelvin
22 attempted to explain the inconsistency by testifying that he
23 began researching his asylum application between December
4
1 2006 and March 2007, but the agency need not credit Kelvin’s
2 explanation for his inconsistent testimony unless the
3 explanation would compel a reasonable fact-finder to do so.
4 See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
5 Because Kelvin was unable to produce credible evidence
6 sufficient to establish either past persecution or a clear
7 probability of future persecution in Malaysia, the agency
8 did not err in denying his application for withholding of
9 removal. See 8 C.F.R. §§ 1208.16(b)(1), (b)(2);
10 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).
11 For the foregoing reasons, the petition for review is
12 DISMISSED in part and DENIED, in part. Any pending motion
13 for a stay of removal in this petition is DISMISSED as moot.
14 Any pending request for oral argument in this petition is
15 DENIED in accordance with Federal Rule of Appellate
16 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
19
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