    12-1951
    Shrestha v. Holder
                                                                                   BIA
                                                                              Cheng, IJ
                                                                          A088 834 201
                          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
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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.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 24th day of July, two thousand thirteen.

    PRESENT:
             JON O. NEWMAN,
             GERARD E. LYNCH,
             SUSAN L. CARNEY,
                  Circuit Judges.
    _____________________________________

    RAJESH SHRESTHA,
             Petitioner,

                         v.                                12-1951
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                Khaghendra Gharti-Chhetry, New York,
                                   New York.

    FOR RESPONDENT:                Stuart F. Delery, Principal Deputy
                                   Assistant Attorney General; Cindy S.
                                   Ferrier, Assistant Director;
                                   Kimberly A. Burdge, Trial Attorney,
                                   Office of Immigration Litigation,
                      United States Department of
                      Justice, Washington, D.C.
    UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

    Rajesh Shrestha, a native and citizen of Nepal, seeks

review of an April 17, 2012, decision of the BIA affirming

the November 17, 2009, decision of Immigration Judge (“IJ”)

Mary M. Cheng, which denied his application for asylum,

withholding of removal, and relief under the Convention

Against Torture (“CAT”).    In re Rajesh Shrestha, No. A088

834 201 (B.I.A. Apr. 17, 2012), aff’g No. A088 834 201

(Immig. Ct. N.Y. City Nov. 17, 2009).    We assume the

parties’ familiarity with the underlying facts and

procedural history in this case.

    Under the circumstances of this case, we have reviewed

the IJ’s decision as modified by the BIA decision.       See Xue

Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d

Cir. 2005).    The applicable standards of review are well-

established.    See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

Holder, 562 F.3d 510, 513 (2d Cir. 2009).




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    For applications such as this one, governed by the

amendments made to the Immigration and Nationality Act by

the REAL ID Act of 2005, “[c]onsidering the totality of the

circumstances,” the agency may base a credibility

determination on the demeanor of the applicant as well as

the consistency of the applicant’s statements with other

record evidence, regardless of whether an inconsistency

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

§ 1158(b)(1)(B)(iii); see also Xiu Xia Lin v. Mukasey, 534

F.3d 162, 167 (2d Cir. 2008) (per curiam).

    Contrary to Shrestha’s assertion, the agency reasonably

relied on inconsistencies between his testimony and other

record evidence in finding his testimony incredible.     Xiu

Xia Lin, 534 F.3d at 167. Shrestha testified that Maoists

had never tried to abduct him, whereas his brother stated in

a letter that Shrestha “had been tried to be abducted,” and

Shrestha also testified that Maoists had threatened to

“close down the [family] shop,” whereas he later conceded

that there was no such threat.   Shrestha’s explanation for

the inconsistency between his testimony and his brother’s

letter – that his brother “could well” have been referring

to a separate incident – does not compel a reasonable


                             3
adjudicator to conclude that Shrestha’s testimony should be

credited.     See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d

Cir. 2005).    The adverse credibility determination was

further supported by Shrestha’s omission from his

application of a threatening telephone call to his family,

given that the application was otherwise detailed and

comprehensive.     Xiu Xia Lin, 534 F.3d at 166 n.3.

Shrestha’s explanation for the omission – that it was less

threatening than other calls – does not compel a contrary

result.     Majidi, 430 F.3d at 80-81.

    Moreover, the agency’s adverse credibility

determination also was supported by its demeanor finding –

that Shrestha’s testimony was vague and nonresponsive,

particularly when he was asked to explain inconsistencies.

Although Shrestha faults the agency for failing to refer to

specific aspects of his poor demeanor, as the demeanor

findings were supported by specific examples of unresponsive

testimony, we afford “particular deference” to those

findings.     See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d

99, 109 (2d Cir. 2006); Jin Chen v. U.S. Dep’t of Justice,

426 F.3d 104, 113 (2d Cir. 2005).




                                4
    Given the inconsistencies and demeanor finding, the

adverse credibility determination is supported by

substantial evidence.

    Furthermore, the BIA reasonably concluded that Shrestha

had not shown mistreatment amounting to past persecution and

that his claim of fear of future persecution was diminished

by his return to Nepal on two occasions after trips to Dubai

and by his family’s continued safe residence in Nepal.

    We have considered Shrestha’s arguments regarding the

agency’s denial of CAT relief, and find that, given the

adverse credibility determination, they lack merit.   See Mu

Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 160 (2d

Cir. 2005); Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 143-44

(2d Cir. 2003).

    For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, the pending motion

for a stay of removal in this petition is DENIED as moot.

Any pending request for oral argument in this petition is

DENIED in accordance with Federal Rule of Appellate

Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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