Kumar v. Holder

10-3450-ag Kumar v. Holder BIA Burr, IJ A074 849 052 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 18th day of April, two thousand twelve. 5 6 PRESENT: 7 DENNIS JACOBS, 8 Chief Judge, 9 RAYMOND J. LOHIER, JR., 10 SUSAN L. CARNEY, 11 Circuit Judges. 12 _______________________________________ 13 14 BALRAM KUMAR, 15 Petitioner, 16 17 v. 10-3450-ag 18 NAC 19 ERIC H. HOLDER, JR., UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 ______________________________________ 23 24 FOR PETITIONER: Theodore N. Cox, New York, New York. 25 26 FOR RESPONDENT: Tony West, Assistant Attorney 27 General; Melissa Neiman-Kelting, 28 Senior Litigation Counsel; 29 Christopher Buchanan, Trial 30 Attorney, Office of Immigration 31 Litigation, 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 Petitioner Balram Kumar, a native and citizen of India, 6 seeks review of the August 16, 2010, decision of the BIA: 7 (1) affirming an October 23, 2008, decision of an 8 Immigration Judge (“IJ”) pretermitting his application for 9 asylum as untimely and denying his applications for 10 withholding of removal and CAT relief; and (2) denying his 11 motion to remand. In re Balram Kumar, No. A074 849 052 12 (B.I.A. Aug. 16, 2010), aff’g No. A074 849 052 (Immig. Ct. 13 N.Y. City Oct. 23, 2008). We assume the parties’ 14 familiarity with the underlying facts and procedural history 15 in this case. 16 As an initial matter, we lack jurisdiction to review 17 the agency’s pretermission of Kumar’s untimely asylum 18 application. See 8 U.S.C. § 1158(a)(3). Although we retain 19 jurisdiction to review constitutional claims and “questions 20 of law,” 8 U.S.C. § 1252(a)(2)(D), Kumar’s only contention 21 is that the agency mischaracterized his explanation for the 22 untimely filing of his application. A petitioner cannot 2 1 “secure review by using the rhetoric of a ‘constitutional 2 claim’ or ‘question of law’ to disguise what is essentially 3 a quarrel about fact-finding or the exercise of 4 discretion”). Xiao Ji Chen v. U.S. Dep’t of Justice, 471 5 F.3d 315, 330 (2d Cir. 2006). Accordingly, we dismiss the 6 petition for review to the extent it challenges the agency’s 7 pretermission of his asylum application. See 8 U.S.C. 8 § 1158(a)(3). Nevertheless, we may review the agency’s 9 denial of withholding of removal and CAT relief. 10 We consider both the IJ’s and the BIA’s opinions “for 11 the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 12 237 (2d Cir. 2008). The applicable standards of review are 13 well established. See 8 U.S.C. § 1252(b)(4)(B); see also 14 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). 15 For applications, such as this one, governed by the REAL ID 16 Act, the agency may, “[c]onsidering the totality of the 17 circumstances, . . . base a credibility determination on . . 18 . the inherent plausibility of the applicant’s or witness’s 19 account, the consistency between the applicant’s or 20 witness’s written and oral statements (whenever made and 21 whether or not under oath, and considering the circumstances 22 under which the statements were made), . . . without regard 3 1 to whether an inconsistency . . . goes to the heart of the 2 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). 3 Substantial evidence supports the agency’s adverse 4 credibility determination. The agency reasonably relied on 5 inconsistencies between Kumar’s asylum application and 6 hearing testimony. See Xiu Xia Lin, 534 F.3d at 166-67 & 7 n.3. Nor would a reasonable fact finder be compelled to 8 credit Kumar’s explanations for these inconsistencies. See 9 Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). 10 Accordingly, because Kumar based his applications for 11 withholding of removal and for CAT relief on the same 12 factual predicate that the agency found not credible, both 13 claims necessarily fail. See Paul v. Gonzales, 444 F.3d 14 148, 156 (2d Cir. 2006). 15 Kumar does not challenge the BIA’s denial of his motion 16 to remand. 17 For the foregoing reasons, the petition for review is 18 DISMISSED in part and DENIED in part. As we have completed 19 our review, any stay of removal that the Court previously 20 granted in this petition is VACATED, and any pending motion 21 for a stay of removal in this petition is DISMISSED as moot. 22 23 4 1 Any pending request for oral argument in this petition 2 is DENIED in accordance with Federal Rule of Appellate 3 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). 4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, Clerk 6 7 8 5