         12-5121
         Dolma v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A087 638 556
                            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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 22nd day of September, two thousand fourteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                BARRINGTON D. PARKER,
 9                DEBRA ANN LIVINGSTON,
10                     Circuit Judges.
11       _____________________________________
12
13       WANGCHUK DOLMA,
14                Petitioner,
15
16                         v.                                   12-5121
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Wangchuk Dolma, Pro Se, Woodside,
24                                     NY.
25
26       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
27                                     General; Francis W. Fraser, Senior
28                                     Litigation Counsel; Regina Byrd,
29                                     Attorney, Office of Immigration
 1                             Litigation, United States Department
 2                             of Justice, Washington, D.C.
 3
 4       UPON DUE CONSIDERATION of this petition for review of a

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

 6   ORDERED, ADJUDGED, AND DECREED that the petition for review

 7   is DENIED.

 8       Petitioner Wangchuk Dolma, a native of Tibet and

 9   citizen of China, seeks review of a November 23, 2012 order

10   of the BIA, affirming the August 23, 2011 decision of an

11   Immigration Judge (“IJ”), which denied asylum, withholding

12   of removal, and relief under the Convention Against Torture

13   (“CAT”).     In re Wangchuk Dolma, No. A087 638 556 (B.I.A.

14   Nov. 23, 2012), aff’g No. A087 638 556 (Immig. Ct. New York

15   City Aug. 23, 2011).    We assume the parties’ familiarity

16   with the underlying facts and procedural history in this

17   case.

18       Under the circumstances of this case, we review the

19   decisions of both the IJ and the BIA.     See Yun-Zui Guan v.

20   Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam).

21   The applicable standards of review are well established.

22   See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v.

23   Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam).

24


                                     2
 1       For applications such as Dolma’s, which are governed by

 2   the REAL ID Act, the agency may base a credibility finding

 3   on an applicant’s demeanor, the plausibility of her account,

 4   and inconsistencies in her statements, without regard to

 5   whether they go “to the heart of the applicant’s claim.”      8

 6   U.S.C. § 1158(b)(1)(B)(iii).   “We defer therefore to an IJ’s

 7   credibility determination unless, from the totality of the

 8   circumstances, it is plain that no reasonable fact-finder

 9   could make such an adverse credibility ruling.”   Xiu Xia

10   Lin, 534 F.3d at 167.

11       Initially, Dolma does not contest the agency’s reliance

12   on her inconsistent testimony about the date of her arrest,

13   which the agency found went to the heart of her claim.      She

14   has therefore waived review of that determination in this

15   Court.   See Yueqing Zhang v. Gonzales, 426 F.3d 540, 542 n.1

16   (2d Cir. 2005).

17       The agency’s adverse credibility determination was also

18   reasonably based on Dolma’s inconsistent testimony

19   concerning the length of her detention.   See 8 U.S.C.

20   § 1158(b)(1)(B)(iii).   Dolma initially testified that she

21   was detained for about two months but later testified that

22   she was detained for one month and 11 days.   While Dolma


                                    3
 1   argues that her testimony was consistent, “support for a

 2   contrary inference—even one more plausible or more

 3   natural—does not suggest error,” Siewe v. Gonzalez, 480 F.3d

 4   160, 168 (2d Cir. 2007).   We therefore defer to the agency’s

 5   inconsistency finding.

 6       The agency’s adverse credibility determination was also

 7   properly based on the implausibility of Dolma’s testimony

 8   that she knew almost nothing about her husband’s pro-Tibet

 9   activities.   Indeed, Dolma was unable to state what posters

10   her husband had hung, who he had hung them with, whether he

11   supported the Olympics being held in China, and whether he

12   opposed China’s occupation of Tibet.    Although we have

13   cautioned against implausibility findings that are based on

14   flawed reasoning, see e.g., Cao He Lin v. U.S. Dep’t of

15   Justice, 428 F.3d 391, 403 (2d Cir. 2005), it was reasonable

16   for the agency to expect Dolma to know more about her

17   husband’s activities because they were the catalyst for her

18   arrest, detention, and decision to leave China.    See Xiu Xia

19   Lin, 534 F.3d at 167.

20       The agency also reasonably relied on Dolma’s hesitant

21   demeanor in finding her not credible.    See 8 U.S.C.

22   § 1158(b)(1)(B)(iii); see also Tu Lin v. Gonzales, 446 F.3d


                                   4
 1   395, 400-01 (2d Cir. 2006) (emphasizing that because

 2   demeanor is “virtually always evaluated subjectively and

 3   intuitively,” an IJ’s assessment of an applicant’s demeanor

 4   merits “great deference”).    The IJ noted long pauses on the

 5   record when Dolma was questioned about her lack of knowledge

 6   of her husband’s pro-Tibet activities and about the duration

 7   of her detention.    See Li Hua Lin v. U.S. Dep’t of Justice,

 8   453 F.3d 99, 109 (2d Cir. 2006) (observing that we may be

 9   more “more confident in our review of observations about an

10   applicant’s demeanor where . . . they are supported by

11   specific examples of inconsistent testimony”).       While Dolma

12   takes issue with the IJ’s characterization of her demeanor

13   as hesitant, where, as here, the agency’s inference “is

14   tethered to the evidentiary record, we will accord deference

15   to the finding.”    See Siewe, 480 F.3d at 168-69.

16       Based on the foregoing, we find that the agency’s

17   adverse credibility determination is supported by

18   substantial evidence because it cannot be said “that no

19   reasonable fact-finder could make such an adverse

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

21   agency therefore did not err in denying asylum, withholding

22   of removal, and CAT relief because all three claims shared

23   the same factual predicate.    See Paul v. Gonzales, 444 F.3d
                                    5
 1   148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of

 2   Justice, 426 F.3d 520, 523 (2d Cir. 2005).

 3       For the foregoing reasons, the petition for review is

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

 5   removal that the Court previously granted in this petition

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

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

 8   oral argument in this petition is DENIED in accordance with

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

10   Circuit Local Rule 34.1(b).

11                                 FOR THE COURT:
12                                 Catherine O’Hagan Wolfe, Clerk
13
14




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