         08-4063-ag
         Chimeka v. U.S. Attorney General
                                                                                       BIA
                                                                                   Chew, IJ
                                                                                079 427 643
                                 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 for
 2           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 11 th day of February, two thousand ten.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                      Chief Judge,
 9                PIERRE N. LEVAL,
10                PETER W. HALL,
11                      Circuit Judges.
12       _______________________________________
13
14       GODWIN UDO CHIMEKA,
15                Petitioner,
16
17                         v.                                   08-4063-ag
18                                                              NAC
19       U.S. ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                     Georgia B. Gillett, Miramar,
24                                           Florida.
1    FOR RESPONDENT:           Michael F. Hertz, Acting Assistant
2                              Attorney General, Emily Anne
3                              Radford, Assistant Director, James
4                              A. Hunolt, Senior Litigation
5                              Counsel, Office of Immigration
6                              Litigation, Civil Division, United
7                              States Department of Justice,
8                              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        Petitioner Godwin Udo Chimeka, a native and citizen of

6    Nigeria, seeks review of a July 25, 2008 order of the BIA

7    affirming the October 29, 2007 decision of Immigration Judge

8    (“IJ”) George T. Chew, pretermitting his application for

9    asylum and denying his applications for withholding of

10   removal and relief under the Convention Against Torture

11   (“CAT”).   In re Godwin Udo Chimeka, No. A079 427 643 (B.I.A.

12   July 25, 2008), aff’g No. A079 427 643 (Immig. Ct. N.Y. City

13   Oct. 29, 2007).     We assume the parties’ familiarity with the

14   underlying facts and procedural history of the case.

15       As an initial matter, because Chimeka does not

16   challenge the IJ’s pretermission of his untimely asylum

17   application, we review only Chimeka’s challenge to the

18   agency’s denial of his applications for withholding of

19   removal and CAT relief.

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1         We review the agency’s factual findings, including

2    adverse credibility determinations, under the substantial

3    evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also

4    Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008).     Because

5    Chimeka filed his asylum application after May 11, 2005, the

6    amendments made to the Immigration and Nationality Act by

7    the REAL ID Act of 2005 apply to his asylum application. See

8    Pub.L. No. 109-13,

9    § 101(h)(2), 119 Stat. 231, 305 (2005).   For asylum

10   applications governed by the REAL ID Act, the agency may,

11   considering the totality of the circumstances, base a

12   credibility finding on an asylum applicant’s demeanor, the

13   plausibility of his or her account, and inconsistencies in

14   his or her statements, without regard to whether they go “to

15   the heart of the applicant’s claim.”   8 U.S.C.

16   § 1158(b)(1)(B)(iii); see Matter of J-Y-C-, 24 I. & N. Dec.

17   260, 265 (BIA 2007).

18       Substantial evidence supports the IJ’s adverse

19   credibility determination.   The IJ reasonably found that

20   Chimeka’s testimony was inconsistent with his asylum

21   application, as Chimeka claimed during his merits hearing

22   that he had been arrested in Nigeria on two prior occasions,

23   but indicated on his asylum application that he had never



                                   3
1    been arrested.   Although “asylum applicants are not required

2    to list every incident of persecution on their I-589

3    statements,” Pavlova v. INS, 441 F.3d 82, 90 (2d Cir. 2006),

4    Chimeka’s omission of these alleged arrests was sufficiently

5    dramatic as to undermine his credibility. See Xian Tuan Ye

6    v. DHS, 446 F.3d 289, 294-96 (2d Cir. 2006); see also Xiu

7    Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).

8        The IJ’s adverse credibility determination was also

9    supported by his observation that Chimeka was “very hesitant

10   and very evasive” during questioning about his alleged MASSOB

11   activities in the United States.    We afford particular

12   deference to such assessments of an applicant’s demeanor.     See

13   Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005).

14       Chimeka argues that because the IJ did not state

15   explicitly that he did not believe that Chimeka was a member

16   of MASSOB in Nigeria, the IJ erred by failing to evaluate

17   whether he had an objectively reasonable fear of persecution

18   on that basis.   Yet while in some circumstances the IJ may

19   make a “bifurcated” credibility determination, believing some

20   aspects of the alien’s claim but not others, such was not the

21   case here.   Cf. Paul v. Gonzales, 444 F.3d 148, 154-57

22   (finding that where the IJ disbelieved petitioner’s past

23   persecution claim, but explicitly found that he was a


                                     4
1    practicing Christian, the BIA could not ignore objective

2    evidence regarding the treatment of Christians in the

3    petitioner’s country).   Rather, the IJ’s decision makes clear

4    that he found Chimeka’s claim, as a whole, “implausible.”

5    Substantial evidence supports that finding.   See 8 U.S.C.

6    § 1158(b)(1)(B)(iii).

7        Because the only evidence of a threat to Chimeka’s life or

8    freedom depended upon his credibility, the adverse credibility

9    determination in this case necessarily precludes success on

10   his claim for withholding of removal and   CAT relief.   See

11   Paul, 444 F.3d at 156; Wu Biao Chen v. INS, 344 F.3d 272, 275

12   (2d Cir. 2003).

13       For the foregoing reasons, the petition for review is

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

15   that the Court previously granted in this petition is VACATED,

16   and any pending motion for a stay of removal in this petition

17   is DISMISSED as moot. Any pending request for oral argument in

18   this petition is DENIED in accordance with Federal Rule of

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

20   34(b).

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