         10-1749-ag
         Kalansuriya v. Holder
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A097 538 432
                                 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 12th day of April, two thousand eleven.
 5
 6       PRESENT:
 7                         ROBERT A. KATZMANN,
 8                         DEBRA ANN LIVINGSTON,
 9                         RAYMOND J. LOHIER, JR.,
10                                 Circuit Judges.
11
12       _______________________________________
13
14       GAMINI KALANSURIYA,
15                Petitioner,
16
17                           v.                                 10-1749-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:                  Visuvanathan Rudrakumaran, New York,
25                                        New York.
26
27       FOR RESPONDENT:                  Tony West, Assistant Attorney
28                                        General; Blair T. O’Connor,
29                                        Assistant Director; Joseph D. Hardy,
30                                        Trial Attorney, Office of
31                                        Immigration Litigation, United
32                                        States Department of Justice,
33                                        Washington D.C.
34
 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 Gamini Kalansuriya, a native and citizen of

 6   Sri Lanka, seeks review of the April 8, 2010, order of the

 7   BIA affirming the July 29, 2008, decision of Immigration

 8   Judge (“IJ”) Alan A. Vomacka pretermitting his application

 9   for asylum as untimely filed and denying his applications

10   for withholding of removal and relief under the Convention

11   Against Torture (“CAT”).     In re Gamini Kalansuriya, No. A097

12   538 432 (B.I.A. Apr. 8, 2010), aff’g No. A097 538 432

13   (Immig. Ct. N.Y. City July 29, 2008).       We assume the

14   parties’ familiarity with the underlying facts and

15   procedural history in this case.

16       Under the circumstances of this case, we review both

17   the BIA’s and IJ’s opinions.     Yun-Zui Guan v. Gonzales, 432

18   F.3d 391, 394 (2d Cir. 2005).       The applicable standards of

19   review are well-established.     See 8 U.S.C. § 1252(b)(4)(B);

20   see also Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.

21   2008); Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d Cir. 2007).

22       Substantial evidence supports the agency’s adverse

23   credibility determination.     In finding Kalansuriya not

                                     2
 1   credible, the IJ reasonably relied in part on Kalansuriya’s

 2   demeanor while testifying and the implausibility of part of

 3   his claim.   See 8 U.S.C. § 1158(b)(1)(B)(iii); see also

 4   Wensheng Yan v. Mukasey, 509 F.3d 63, 66 (2d Cir. 2007);

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

 6   Additionally, the IJ reasonably noted the absence of certain

 7   documentary evidence that may have corroborated

 8   Kalansuriya’s claim.   See Biao Yang v. Gonzales, 496 F.3d

 9   268, 273 (2d Cir. 2007).   Kalansuriya argues that the agency

10   erred in concluding that there was an inconsistency between

11   his testimony and his asylum application regarding whether

12   he was pressured by the Liberation Tigers of Tamil Eelam

13   (“LTTE”) to stop providing information to the police or

14   military, or whether he was told instead by the LTTE to stop

15   conducting business with the police and military.   Even

16   assuming that this inconsistency finding was not supported

17   by the record, however, remand is unnecessary here because

18   the agency’s other findings constitute substantial evidence

19   to support the adverse credibility determination, and we can

20   confidently predict that the agency would reach the same

21   decision were the case remanded.   See Xiao Ji Chen v. U.S.

22   Dep’t of Justice, 471 F.3d 315, 338-40 (2d Cir. 2006).

23       We decline to consider Kalansuriya’s argument that the

                                   3
 1   IJ erred by failing to consider the most recent U.S.

 2   Department of State country reports because Kalansuriya did

 3   not exhaust this argument before the BIA. See Lin Zhong v.

 4   U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007).

 5       Finally, insofar as Kalansuriya based his applications

 6   for withholding of removal and CAT relief on the same

 7   factual predicate that the agency found not credible, both

 8   of his claims necessarily fail.     See Paul v. Gonzales, 444

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

10       For the foregoing reasons, the petition for review is

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

12   removal that the Court previously granted in this petition

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

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

15   oral argument in this petition is DENIED in accordance with

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

17   Circuit Local Rule 34.1(b).

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




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