         13-1891
         Kaur v. Holder
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A097 545 907
                           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 31st day of October, two thousand fourteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                RICHARD C. WESLEY,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       PARMJEET KAUR,
14                Petitioner,
15
16                        v.                                    13-1891
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Genet Getachew, Brooklyn, NY.
24
25       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
26                                     General; Emily Anne Radford,
27                                     Assistant Director; Kohsei Ugumori,
28                                     David Schor, Trial Attorneys, Office
29                                     of Immigration Litigation, United
30                                     States Department of Justice,
31                                     Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

 2   decision of the Board of Immigration Appeals (“BIA”), it is

 3   hereby ORDERED, ADJUDGED, AND DECREED that the petition for

 4   review is DENIED.

 5       Parmjeet Kaur, a native and citizen of India, seeks

 6   review of an April 30, 2013, decision of the BIA affirming

 7   an Immigration Judge’s (“IJ”) September 28, 2010, denial of

 8   asylum, withholding of removal, and relief under the

 9   Convention Against Torture (“CAT”).    In re Parmjeet Kaur,

10   No. A097 545 907 (B.I.A. Apr. 30, 2013), aff’g No. A097 545

11   907 (Immig. Ct. N.Y. City Sept. 28, 2010).   We assume the

12   parties’ familiarity with the underlying facts and

13   procedural history of this case.

14       Under the circumstances of this case, we have reviewed

15   both the BIA’s and IJ’s decisions.    Yun-Zui Guan v.

16   Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam).

17   The applicable standards of review are well established.

18   See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562

19   F.3d 510, 513 (2d Cir. 2009).

20       For asylum applications, like Kaur’s, pre-dating the

21   REAL ID Act, an adverse credibility determination must be

22   based on “specific, cogent reasons” that “bear a legitimate

23   nexus” to the finding, and any discrepancy must be

                                     2
 1   “substantial” when measured against the record as a whole.

 2   Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir. 2003)

 3   (quotation marks and citation omitted).       The agency need not

 4   credit an applicant’s explanations for inconsistent

 5   testimony unless those explanations would compel a

 6   reasonable fact-finder to do so.       Majidi v. Gonzales, 430

 7   F.3d 77, 80-81 (2d Cir. 2005).

 8       In finding Kaur not credible, the agency reasonably

 9   relied on her conflicting account of whether two or three

10   police officers raped her, and the differences among her

11   multiple asylum applications.       As to the rape, Kaur admits

12   that her written statement and testimony were inconsistent.

13   Kaur’s explanation is that a third person was present during

14   the rape.   This explanation does not clarify why her

15   application stated she was raped by two individuals but she

16   testified explicitly that she was raped by three.       A

17   reasonable factfinder would not be compelled to credit the

18   explanation, particularly given the specific and detailed

19   nature of her written statements and her testimony.         Majidi,

20   430 F.3d at 80-81.   Although Kaur argues that her testimony

21   and statement were consistent that there was a rape, she

22   cites no authority supporting her argument that


                                     3
 1   inconsistencies in major details about a claim may be

 2   overlooked if the record is consistent on a general level.

 3   As this inconsistency calls into question whether the rape

 4   occurred, the agency properly considered it in making an

 5   adverse credibility determination.    Secaida-Rosales, 331

 6   F.3d at 307-08.

 7       Kaur argues the agency erred in considering her initial

 8   asylum application, which set forth a different basis for

 9   asylum than the amended asylum application she submitted on

10   the day of her merits hearing.    Specifically, Kaur’s initial

11   application, filed in 2004, stated that her human and

12   women’s rights activism resulted in arrests and detentions,

13   and being tortured five times by “fanatic Hindus.”     In 2010,

14   after documentation of her Canadian asylum proceedings was

15   submitted to the immigration court, Kaur amended her

16   application to remove the comments about activism and

17   Hindus.   She instead asserted that she was targeted because

18   her father was suspected of interacting with terrorists and

19   the police arrested Kaur when she refused to disclose his

20   location to the police.   This account was generally

21   consistent with Kaur’s Canadian asylum application.     Kaur

22   admitted that she was never a human or women’s rights


                                   4
 1   activist, nor was she tortured five times by Hindus.      When

 2   asked to explain why she would make such representations,

 3   Kaur initially replied she had “no knowledge,” but later

 4   suggested her former attorney was to blame as he had not

 5   translated the statement to her.     The agency was not

 6   compelled to credit Kaur’s explanations, as she swore to the

 7   initial application and made no effort to pursue an

 8   ineffective assistance complaint against her former

 9   attorney.   Majidi, 430 F.3d at 80-81; see also In re Lozada,

10   19 I. & N. Dec. 637 (BIA 1988) (setting forth regulations

11   for ineffective assistance claim).

12       Despite Kaur’s argument that the agency erred by

13   considering her original asylum application and supplemental

14   affidavit, case law supports the agency’s consideration of

15   both documents and its conclusion that the change in Kaur’s

16   story undermined her credibility.     See, e.g., Borovikova v.

17   U.S. DOJ, 435 F.3d 151, 159-60 (2d Cir. 2006).     Nor did the

18   IJ engage in speculation in finding that Kaur changed her

19   story to “beef up” her asylum claim after she was denied

20   asylum in Canada.   That conclusion is tied to both the

21   timing and the content of the change.     See Wensheng Yan v.

22   Mukasey, 509 F.3d 63, 66-67 (2d Cir. 2007) (per curiam).

23
                                   5
 1       Finally, Kaur challenges the agency’s finding that her

 2   testimony changed regarding whether the police officers

 3   involved in the rape were the same officers who arrested her

 4   earlier in the day.   Kaur testified that after she was

 5   arrested by two police officers, the arresting officers and

 6   a third officer raped her.   Kaur testified that she knew the

 7   third man was a police officer because he was present “when

 8   they had arrested [her] before.”   Although the agency found

 9   this inconsistent with her testimony that she had been

10   arrested by two police officers that day, Kaur alleged two

11   arrests and the agency did not consider the possibility that

12   the third officer was present at the earlier arrest.      Thus,

13   this finding does not support the adverse credibility

14   determination.   Additionally, the IJ’s finding of an

15   inconsistency regarding where the rape occurred (which Kaur

16   does not challenge) is also unsupported; the IJ relied on a

17   conclusion in the Canadian asylum decision contradicted by

18   the Canadian asylum application.   Absent further records,

19   there is no way to resolve the conflict.

20       However, remand is not warranted on these grounds.

21   Even absent these problematic findings, the agency’s adverse

22   credibility determination is supported by substantial

23   evidence.   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
                                   6
 1   F.3d 315, 339 (2d Cir. 2006) (holding that remand not

 2   required where agency would have reached same conclusion

 3   absent erroneous findings).     Considering Kaur’s conflicting

 4   testimony regarding how many police officers raped her and

 5   the differing claims of persecution alleged throughout the

 6   proceedings, substantial evidence supports the adverse

 7   credibility determination.     Secaida-Rosales, 331 F.3d at

 8   307.     As all of Kaur’s claims share the same factual

 9   predicate, the adverse credibility determination is

10   dispositive of asylum, withholding of removal, and CAT

11   relief.     Paul v. Gonzales, 444 F.3d 148, 155-57 (2d Cir.

12   2006).

13          For the foregoing reasons, the petition for review is

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

15   removal that the Court previously granted in this petition

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

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

18   oral argument in this petition is DENIED in accordance with

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

20   Circuit Local Rule 34.1(b).

21                                 FOR THE COURT:
22                                 Catherine O’Hagan Wolfe, Clerk
23
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