         11-4463
         Dangol v. Holder
                                                                                       BIA
                                                                                      Hom,
                                                                               A089 249 768
                             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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 18th day of June, two thousand thirteen.
 5
 6       PRESENT:
 7                REENA RAGGI,
 8                DEBRA ANN LIVINGSTON,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12       HIKMAT DANGOL,
13                Petitioner,
14
15                          v.                                  11-4463
16                                                              NAC
17       ERIC H. HOLDER, JR., UNITED STATES
18       ATTORNEY GENERAL,
19                Respondent.
20       _____________________________________
21
22       FOR PETITIONER:               Dilli Raj Bhatta, New York, New
23                                     York.
24
25       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
26                                     Attorney General; Shelley R. Goad,
27                                     Assistant Director; Carmel A.
28                                     Morgan, Trial Attorney, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice,
31                                     Washington, D.C.
32
 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       Hikmat Dangol, a native and citizen of Nepal, seeks

 6   review of a September 30, 2011, order of the BIA affirming

 7   the April 7, 2010, decision of an Immigration Judge (“IJ”),

 8   which denied his applications for asylum, withholding of

 9   removal, and relief under the Convention Against Torture

10   (“CAT”).     In re Dangol, No. A089 249 768 (B.I.A. Sept. 30,

11   2011), aff’g No. A089 249 768 (Immig. Ct. N.Y. City Apr. 7,

12   2010).     We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14       Under the circumstances of this case, we have reviewed

15   the decisions of both the IJ and the BIA.     See Yan Chen v.

16   Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).     The applicable

17   standards of review are well-established.     See 8 U.S.C.

18   § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d

19   162, 165-66 (2d Cir. 2008) (per curiam).

20       For asylum applications such as this one, governed by

21   the amendments made to the Immigration and Nationality Act

22   by the REAL ID Act of 2005, the agency may, considering the

23   totality of the circumstances, base a credibility finding on


                                     2
 1   an asylum applicant’s “demeanor, candor, or responsiveness,”

 2   the plausibility of his or her account, and inconsistencies

 3   in his or her statements, without regard to whether they go

 4   “to the heart of the applicant’s claim.”   See 8 U.S.C.

 5   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.     This

 6   Court “defer[s] . . . to [the agency’s] credibility

 7   determination unless, from the totality of the

 8   circumstances, it is plain that no reasonable fact-finder

 9   could make such an adverse credibility ruling.”   Xiu Xia

10   Lin, 534 F.3d at 167.

11       In this case, the agency’s adverse credibility

12   determination is supported by substantial evidence that

13   takes the form of inconsistencies and evasive testimony

14   going to the heart of Dangol’s persecution claims.    See Li

15   Zu Guan v. INS, 453 F.3d 129, 135 (2d Cir. 2006) (defining

16   “substantial evidence” as “such relevant evidence as a

17   reasonable mind might accept as adequate to support a

18   conclusion” (citations and internal quotation marks

19   omitted)).   His testimony that he wrote an article critical

20   of Maoists in the Sumatara Patra newspaper in March 2007 was

21   inconsistent with a letter from that newspaper’s editor

22   stating that Dangol only wrote for the newspaper until 2006.

23   Dangol’s claim that he was never given an opportunity to


                                   3
 1   meaningfully explain that inconsistency is belied by the

 2   Government’s repeated requests during the merits hearing

 3   that he explain it.   Dangol responded evasively to most of

 4   those questions, and finally suggested that the editor-in-

 5   chief might have forgotten about his work at the newspaper.

 6   The agency permissibly took Dangol’s non-responsiveness into

 7   account in forming its negative credibility determination.

 8   See 8 U.S.C. § 1158(b)(1)(B)(iii).   Moreover, the agency was

 9   not required to specifically address his explanation as to

10   the inconsistency, since it is apparent from the BIA’s

11   decision that it found the explanation to be incredible

12   under the totality of the circumstances.   See Xiao Ji Chen

13   v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir.

14   2006) (the agency is not required to “expressly parse or

15   refute on the record each and every one of [an applicant’s]

16   purported explanations for testimonial inconsistencies or

17   evidentiary gaps.”); cf. Pavlova v. INS, 441 F.3d 82, 89-90

18   (2d Cir. 2006) (“[W]here it is not apparent on the face of

19   the record that the [agency] has considered the applicant’s

20   responses to the [agency’s] credibility concerns, we . . .

21   require the [agency] to say enough to allow us to

22   understand, and to review, the reasons for rejecting the

23   applicant’s testimony.”).   Since these inconsistencies and



                                   4
 1   evasiveness concerning Dangol’s claim that he faced

 2   persecution on the basis of the articles he wrote –-

 3   persecution that allegedly peaked following the publication

 4   of the March 2007 article –- support the IJ’s credibility

 5   determination, under a totality of the circumstances, we

 6   defer to the agency’s finding.        See Xiu Xia Lin, 534 F.3d at

 7   167; 8 U.S.C. §1158(b)(1)(B)(iii).

 8       Accordingly, as Dangol’s lack of credibility rendered

 9   him unable to establish past persecution or a well-founded

10   fear of persecution, as was necessary to make out his asylum

11   claim, he was necessarily unable to meet the higher standard

12   for withholding of removal and CAT relief, as all three
13   claims rested on the same factual predicate.        See Paul v.

14   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
15       For the foregoing reasons, the petition for review is

16   DENIED.       As we have completed our review, Dangol’s pending

17   motions for a stay of removal and release from detention,

18   and the Respondent’s motion to expedite, are DISMISSED as

19   moot.1       Any pending request for oral argument in this


              1
             Because the agency’s adverse credibility
       determination is the only issue properly before this
       Court, Dangol’s motion for a remand for adjudication of
       his pending visa petition is denied. Such a request must
       be made before the BIA in the form of a motion to reopen.
       See Xiao Xing Ni v. Gonzales, 494 F.3d 260, 269 (2d Cir.
       2007); see also 8 C.F.R. § 1003.2(c)©. As the petition
       and remand motion have been denied, the Government’s
                                       5
1   petition is DENIED in accordance with Federal Rule of

2   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

3   34.1(b).

4                              FOR THE COURT:
5                              Catherine O’Hagan Wolfe, Clerk
6




      motion to strike Dangol’s supplemental papers is denied
      as moot.
                                 6
