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 ______________________________________
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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
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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
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