         09-2264-ag
         Parnanthu v. Holder
                                                                                         BIA
                                                                                    Straus, IJ
                                                                               A 077 022 500
                                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            Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl            Street, in the City of
 4       New York, on the 7 th day of May, two           thousand ten.
 5
 6       PRESENT:
 7                ROBERT D. SACK,
 8                ROBERT A. KATZMANN,
 9                GERARD E. LYNCH,
10                      Circuit Judges.
11       _______________________________________
12
13       ARULTHAS PARNANTHU,
14                Petitioner,
15
16                             v.                               09-2264-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., U.S. ATTORNEY
19       GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:                 Joseph A. Devamithran, Annandale,
24                                       Virginia.
25
26       FOR RESPONDENT:                 Tony West, Assistant Attorney
27                                       General; Ernesto H. Molina, Jr.,
28                                       Assistant Director; Yanal Yousef,
29                                       Trial Attorney, Office of
30                                       Immigration Litigation, Washington
31                                       D.C.
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        Petitioner Arulthas Parnanthu, a native and citizen of

6    Sri Lanka, seeks review of the April 29, 2009, order of the

7    BIA affirming the December 12, 2008, decision of Immigration

8    Judge (“IJ”) Michael W. Straus denying his application for

9    asylum, withholding of removal, and relief under the

10   Convention Against Torture (“CAT”).     In re Arulthas

11   Parnanthu, No. A 077 022 500 (B.I.A. Apr. 29, 2009), aff’g

12   No. A 077 022 500 (Immig. Ct. Hartford, CT Dec. 12, 2008).

13   We assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15       Under the circumstances of this case, we review both

16   the IJ’s and the BIA’s decisions.     See Yan Chen v. Gonzales,

17   417 F.3d 268, 271 (2d Cir. 2005).     The applicable standards

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

19   § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

20   (2d Cir. 2009).

21       Substantial evidence supports the agency’s adverse

22   credibility determination.   Contrary to Parnanthu’s argument


                                   2
1    that the IJ impermissibly revisited his previous credibility

2    determination on remand, because the BIA specifically

3    directed the IJ to consider the material support and

4    terrorism bars “as well as any other issues,” it did not

5    preclude the IJ from considering the new evidence and

6    testimony and finding Parnanthu not to be credible.     See

7    Chupina v. Holder, 570 F.3d 99, 103 (2d Cir. 2009) (citing

8    Matter of Patel, 16 I&N Dec. 600, 601 (BIA 1978) (“[R]emand

9    is effective for the stated purpose and for consideration of

10   any and all matters which the [immigration judge] deems

11   appropriate in the exercise of his administrative discretion

12   or which are brought to his attention in compliance with the

13   appropriate regulations.”)).

14       There is also no indication that the BIA applied an

15   incorrect legal standard to its review of the IJ’s adverse

16   credibility determination.     Although Parnanthu argues that

17   any inconsistencies did not go to the heart of his claim,

18   under the REAL ID Act, “an IJ may rely on any inconsistency

19   or omission in making an adverse credibility determination

20   as long as the ‘totality of the circumstances’ establishes

21   that the asylum applicant is not credible.”     Xiu Xia Lin v.

22   Mukasey, 534 F.3d 162, 167 (2d Cir. 2008)(quoting 8 U.S.C.


                                     3
1    § 1158(b)(1)(B)(iii))(emphasis in original); see also Matter

2    of J-Y-C-, 24 I. & N. Dec. 260, 265 (BIA 2007) (finding that

3    “the REAL ID Act no longer requires the trier of fact to

4    find a nexus between inconsistencies and the ‘heart of the

5    claim’”).

6        Furthermore, although Parnanthu also argues that the

7    BIA failed to consider the record as a whole and refused to

8    apply any weight to his testimony, those arguments are

9    without merit.   See Xiao Ji Chen v. U.S. Dep’t of Justice,

10   471 F.3d 315, 336 n.17 (“[W]e presume that   [the agency] has

11   taken into account all of the evidence before [it], unless

12   the record compellingly suggests otherwise.”).   In its

13   decision, the BIA noted the specific inconsistencies it

14   relied on in affirming the IJ’s adverse credibility

15   determination.   Parnanthu does not explain what record

16   evidence the BIA failed to consider, or how that evidence

17   would have affected his credibility.

18       Finally, we find no merit in Parnanthu’s argument that

19   the IJ erred in considering the false statements he made

20   during his unsuccessful Canadian asylum proceeding.   As the

21   BIA noted, Parnanthu falsely stated in his Canadian

22   application that he was arrested by the Sri Lankan army in



                                   4
1    March 1999 and detained for four months, later admitting

2    that he made that statement “because he wanted to obtain

3    relief.”     The agency did not err in relying on that

4    inconsistency.     See 8 U.S.C. § 1158(b)(1)(B)(iii).

5        In sum, the agency’s credibility determination was

6    supported by substantial evidence.     See 8 U.S.C.

7    § 1252(b)(4)(B); Xiu Xia Lin, 534 F.3d at 167.        Therefore,

8    the agency did not err in denying Parnanthu's application

9    for asylum and withholding of removal.     See Paul v.

10   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

11       Parnanthu does not challenge the agency’s denial of his

12   application for CAT relief and has therefore waived any such

13   challenge.     See Yueging Zhang v. Gonzales, 426 F.3d 540, 541

14   n.1, 545 n.7 (2d Cir. 2005).

15       For the foregoing reasons, the petition for review is

16   DENIED.    Having completed our review, we DISMISS the

17   petitioner's pending motion for a stay of removal as moot.

18

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




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