         10-1913-ag
         Bhullar v. Holder
                                                                                       BIA
                                                                                Schoppert, IJ
                                                                               A097 527 900
                              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 13th day of July, two thousand eleven.
 5
 6       PRESENT:
 7                PIERRE N. LEVAL,
 8                JOSÉ A. CABRANES,
 9                ROBERT D. SACK,
10                  Circuit Judges.
11       _______________________________________
12
13       GURJEET BHULLAR,
14                Petitioner,
15
16                           v.                                 10-1913-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Amy N. Gell, New York, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; Ernesto H. Molina, Jr.,
27                                     Assistant Director; S. Nicole
28                                     Nardone, Trial Attorney, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice,
31                                     Washington, 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       Gurjeet Bhullar, a native and citizen of India, seeks

 6   review of a April 28, 2010, decision of the BIA affirming

 7   the September 16, 2008, decision of Immigration Judge (“IJ”)

 8   Douglas B. Schoppert, which denied his application for

 9   asylum, withholding of removal and relief under the

10   Convention Against Torture (“CAT”).   In re Gurjeet Bhullar,

11   No. A097 527 900 (B.I.A. Apr. 28, 2010), aff’g No. A097 527

12   900 (Immig. Ct. N.Y. City Sept. 16, 2008).   We assume the

13   parties’ familiarity with the underlying facts and

14   procedural history in this case.

15       Under the circumstances of this case, we have reviewed

16   the IJ’s decision as modified by the BIA decision,

17   considering only the bases relied upon by the BIA as support

18   for the adverse credibility determination.   See Xue Hong

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

20   2005).   The applicable standards of review are well-

21   established.   See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin

22   Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).     Because

23   Bhullar does not challenge the pretermission of his asylum

                                   2
 1   application, and as his CAT claim was not exhausted because

 2   it was not raised before the BIA, we address only the

 3   agency’s denial of withholding of removal.   See 8 U.S.C.

 4   § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir.

 5   2006); Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545

 6   n.7 (2d Cir. 2005); see also 8 U.S.C. § 1158(a)(3).

 7       For withholding applications such as this one, governed

 8   by the amendments made to the Immigration and Nationality

 9   Act by the REAL ID Act of 2005, the agency may, considering

10   the totality of the circumstances, base a credibility

11   finding on an asylum applicant’s “demeanor, candor, or

12   responsiveness,” the plausibility of his or her account, and

13   inconsistencies in his or her statements, without regard to

14   whether they go “to the heart of the applicant’s claim.”

15   See 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia

16   Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).      We “defer

17   to an IJ’s credibility determination unless, from the

18   totality of the circumstances, it is plain that no

19   reasonable fact-finder could make such an adverse

20   credibility ruling.”   Xiu Xia Lin, 534 F.3d at 167.     In this

21   case, the agency’s adverse credibility determination is

22   supported by substantial evidence, given the omissions in

23   Bhullar’s asylum application, the discrepancies between his

                                   3
 1   application and his testimony, and the internal

 2   inconsistences in his testimony.

 3       Specifically, the IJ reasonably relied on the fact that

 4   although Bhullar did not assert that he had ever been

 5   arrested in his written application, he testified that he

 6   attended two demonstrations, and was arrested, detained and

 7   beaten on both occasions.   See id. at 166 (for the purposes

 8   of analyzing a credibility determination, “[a]n

 9   inconsistency and an omission are . . . functionally

10   equivalent.”).   In addition, Bhullar gave inconsistent

11   statements regarding when he left India, testifying first

12   that he left in July 2001 - a statement supported by his

13   application and other affidavits - but then testified that

14   he departed in 2002 when confronted with his passport, which

15   showed that he arrived in Canada in 2002.   See id. at 167

16   (holding that the Court should overturn the agency’s adverse

17   credibility ruling only where no reasonable fact-finder

18   could have made such a ruling).

19       Bhullar argues that the agency did not properly

20   consider the affidavits he submitted from his mother and a

21   neighbor in India.   However, the IJ reasonably declined to

22   credit the affidavits because they were identical to


                                   4
 1   Bhullar’s statement in his asylum application, and there was

 2   no evidence that they had been mailed from India.    See Mei

 3   Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 524 (2d Cir.

 4   2007); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,

 5   342 (2d Cir. 2006).

 6       For the foregoing reasons, the petition for review is

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

 8   removal that the Court previously granted in this petition

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

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

11   oral argument in this petition is DENIED in accordance with

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

13   Circuit Local Rule 34.1(b).

14                                 FOR THE COURT:
15                                 Catherine O’Hagan Wolfe, Clerk
16
17
18
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