         11-5250
         Gomez Zapata v. Holder
                                                                                       BIA
                                                                                Mulligan, IJ
                                                                               A093 341 938
                                  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 21st day of February, two thousand thirteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                BARRINGTON D. PARKER,
 9                RICHARD C. WESLEY,
10                     Circuit Judges.
11       _______________________________________
12
13       HERMAN GOMEZ ZAPATA,
14                Petitioner,
15
16                          v.                                  11-5250
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:                   Heather Yvonne Axford; Anne
24                                         Pilsbury, Central American Legal
25                                         Assistance, Brooklyn, New York.
26
27       FOR RESPONDENT:                   Stuart F. Delery, Acting Assistant
28                                         Attorney General; Lyle D. Jentzer,
29                                         Senior Counsel, National Security
     1                          Unit; Zoe J. Heller, Office of
     2                          Immigration Litigation, U.S.
     3                          Department of Justice, Washington
     4                          D.C.
     5
     6       UPON DUE CONSIDERATION of this petition for review of a

     7   Board of Immigration Appeals (“BIA”) decision, it is hereby

     8   ORDERED, ADJUDGED, AND DECREED that the petition for review

     9   is DENIED.

10           Petitioner Herman Gomez Zapata, a native and citizen of

11       Colombia, seeks review of the November 30, 2011, decision of

12       the BIA affirming the May 4, 2010, decision of Immigration

13       Judge (“IJ”) Thomas J. Mulligan, denying Gomez Zapata’s

14       application for asylum, withholding of removal, and relief

15       under the Convention Against Torture (“CAT”).     In re Herman

16       Gomez Zapata, No. A093 341 938 (B.I.A. Nov. 30, 2011), aff’g

17       No. A093 341 938 (Immig. Ct. N.Y. City May 4, 2010).       We

18       assume the parties’ familiarity with the underlying facts

19       and procedural history in this case.

20           As an initial matter, the only issue before us is the

21       agency’s determination that Gomez Zapata was not credible.

22       See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).

23       Under the circumstances of this case, we have reviewed both

24       the IJ’s and the BIA’s opinions as to Gomez Zapata’s

25       credibility “for the sake of completeness.”     Zaman v.

                                      2
 1   Mukasey, 514 F.3d 233, 237 (2d Cir. 2008).    The applicable

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

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

 4   162, 165-66 (2d Cir. 2008).    For asylum applications

 5   governed by the REAL ID Act, such as the application in this

 6   case, the agency may, considering the totality of the

 7   circumstances, base a credibility finding on an asylum

 8   applicant’s demeanor, the plausibility of his account, and

 9   inconsistencies in his statements and other record evidence,

10   without regard to whether they go “to the heart of the

11   applicant’s claim.”   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

12   Lin, 534 F.3d at 163-64.

13       Substantial evidence supports the agency’s adverse

14   credibility determination.    In finding Gomez Zapata not

15   credible, the IJ reasonably relied in part on Gomez Zapata’s

16   demeanor, noting, in addition to extreme nervousness, a

17   specific instance on direct examination when his testimony

18   was hesitant, lacked a natural flow, and gave the impression

19   that he was attempting to recall a script.    See 8 U.S.C.

20   § 1158(b)(1)(B)(iii); see also Majidi v. Gonzales, 430 F.3d

21   77, 81 n.1 (2d Cir. 2005).    That finding is supported by the

22   hearing transcript.


                                    3
 1       The IJ’s demeanor finding is entitled to deference and

 2   the adverse credibility determination is further supported

 3   by specific examples of contradictory testimony.    See Li Hua

 4   Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir.

 5   2006) (“We can be still more confident in our review of

 6   observations about an applicant’s demeanor where, as here,

 7   they are supported by specific examples of inconsistent

 8   testimony.”).   Indeed, the IJ reasonably found discrepancies

 9   between Gomez Zapata’s testimony and his supporting

10   affidavits as to how he discovered the identity of those

11   threatening him and whether his brother in the United States

12   learned of his troubles from their mother while Gomez Zapata

13   was still in Colombia or from Gomez Zapata after his

14   departure from Colombia.   See 8 U.S.C. § 1158(b)(1)(B)(iii).

15   Gomez Zapata failed to provide a compelling explanation for

16   these discrepancies.   See Majidi, 430 F.3d at 80-81.

17       The agency also did not err in declining to credit

18   Gomez Zapata’s corroborating evidence, and relying, in part,

19   on his failure to credibly corroborate his claim.     See Xiao

20   Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341-42 (2d

21   Cir. 2006) (providing that the weight afforded documentary

22   evidence “lies largely within the discretion of the IJ”)

23   (internal quotation marks and citation omitted); see also

                                   4
 1   Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).

 2   Thus, given the absence of credible corroborating evidence

 3   as well as the discrepancies and demeanor finding, we find

 4   no error in the agency’s denial of Gomez Zapata’s

 5   application for asylum, withholding of removal, and CAT

 6   relief on credibility grounds.      See Paul v. Gonzales, 444

 7   F.3d 148, 156 (2d Cir. 2006).

 8       For the foregoing reasons, the petition for review is

 9   DENIED.   As we have completed our review, any stay of

10   removal that the Court previously granted in this petition

11   is VACATED, and any pending motion for a stay of removal in

12   this petition is DISMISSED as moot.     Any pending request for

13   oral argument in this petition is DENIED in accordance with

14   Federal Rule of Appellate Procedure 34(a)(2), and Second

15   Circuit Local Rule 34.1(b).

16                                 FOR THE COURT:
17                                 Catherine O’Hagan Wolfe, Clerk
18
19
20




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