         09-3018-ag
         Sinha v. Holder
                                                                                       BIA
                                                                                  Videla, IJ
                                                                               A098 235 133
                            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 20 th day of April, two thousand ten.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                         Chief Judge,
 9                GUIDO CALABRESI,
10                DEBRA ANN LIVINGSTON,
11                         Circuit Judges.
12       _______________________________________
13
14       SUMIT SINHA,
15                Petitioner,
16
17                         v.                                   09-3018-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:               Amy N. Gell, Gell & Gell, New York,
25                                     New York.
26
27       FOR RESPONDENT:               Tony West, Assistant Attorney
28                                     General, Civil Division; Aviva L.
29                                     Poczter, Senior Litigation Counsel;
30                                     Jesse D. Lorenz, Trial Attorney,
31                                     Office of Immigration Litigation,
32                                     United States Department of Justice,
33                                     Civil Division, 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         Petitioner Sumit Sinha, a native and citizen of India,

6    seeks review of a June 19, 2009, order of the BIA affirming

7    the November 21, 2007, decision of Immigration Judge (“IJ”)

8    Gabriel C. Videla pretermitting his application for asylum,

9    and denying his application for withholding of removal and

10   relief under the Convention Against Torture (“CAT”).     In re

11   Sumit Sinha, No. A098 235 133 (B.I.A. Jun. 19, 2009), aff’g

12   No. A098 235 133 (Immig. Ct. N.Y. City Nov. 21, 2007).     We

13   assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15        Under the circumstances of this case, we review the

16   decision of the IJ as supplemented by the BIA.   See Yan Chen

17   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).   The

18   applicable standards of review are well-established.     See

19   Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008); Corovic v.

20   Mukasey, 519 F.3d 90, 95 (2d Cir. 2008).

21   I.   Asylum

22        Although Sinha alleges in his pre-argument statement

23


                                  2
1    that remand on the one-year issue is required, because Sinha

2    failed to raise this argument in his brief, we deem it

3    waived.   See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541

4    n.1, 545 n.7 (2d Cir. 2005); see also McCarthy v. S.E.C.,

5    406 F.3d. 179, 186 (2d Cir. 2005) (finding that “arguments

6    not raised in an appellant’s opening brief, but only in his

7    reply brief, are not properly before an appellate court”).

8    II.   Withholding of Removal

9          Substantial evidence supports the IJ’s adverse

10   credibility determination.     In finding Sinha not credible,

11   the IJ found that: (1) Sinha testified inconsistently as to

12   when he quit his job and moved out of his home; (2) it was

13   implausible that he could not specify what activities he

14   engaged in on behalf of the TCM party; (3) his asylum

15   application made no mention that, as he would later testify,

16   he had to quit his job at a paper mill and move away because

17   he feared CPM members would kill him; (4) he testified

18   inconsistently regarding whether members of the CPM party at

19   the paper mill knew he was a member of the TCM party; and

20   (5) he failed to corroborate his testimony with a letter

21   from his wife.

22         The IJ also found Sinha not credible based on his



                                     3
1    “evasive” and “unresponsive” demeanor and what the IJ

2    described as more minor discrepancies.      Sinha does not

3    challenge the IJ’s demeanor finding, or any of these more

4    minor discrepancies.      Accordingly, they stand as valid bases

5    for the IJ’s adverse credibility determination.      See Shunfu

6    Li v. Mukasey, 529 F.3d 141, 147-48 (2d Cir. 2008).

7           With respect to the findings Sinha does challenge, we

8    are not compelled to reach a conclusion different from that

9    of the BIA.     See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d

10   Cir. 2005).     Under the REAL ID Act, the IJ’s adverse

11   credibility determination was amply supported by the record.

12   See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey,

13   534 F.3d 162, 166 n.3 (2d Cir. 2008).

14   III.         CAT Relief

15          Contrary to Sinha’s argument that the IJ erred by

16   failing to address his CAT claim based on the “slightly

17   different factual predicate” that “union members either knew

18   or suspected that he was a member of TMC and . . . that he

19   would be killed,” the IJ’s adverse credibility determination

20   was likewise dispositive of this claim. *    See Xue Hong Yang


             The government’s argument that Sinha failed to
              *

       exhaust his challenge to the agency’s denial of CAT
       relief is without merit because the BIA considered the

                                      4
1    v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).

2        For the foregoing reasons, the petition for review is

3    DENIED.   As we have completed our review, any pending motion

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

5    Any pending request for oral argument in this petition is

6    DENIED in accordance with Federal Rule of Appellate

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

 8                               FOR THE COURT:
 9                               Catherine O’Hagan Wolfe, Clerk
10
11
12




       issue. See Xian Tuan Ye v. DHS, 446 F.3d 289, 296-97 (2d
       Cir. 2006).

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