         11-1887-ag
         Tjua v. Holder

                                                                                            BIA
                                                                                   Balasquide, IJ
                                                                                   A089 253 796

                               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 New
 4       York, on the 4th day of June, two thousand twelve.
 5
 6       PRESENT:
 7                Rosemary S. Pooler,
 8                Richard C. Wesley,
 9                Raymond J. Lohier, Jr.,
10                              Circuit Judges.
11       _________________________________________
12
13       KENNY TJUA,
14                Petitioner,
15
16                        v.                                       11-1887-ag
17                                                                 NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _________________________________________
22
23       FOR PETITIONER:                Oleh R. Tustaniwsky, Brooklyn, N.Y.
24
25       FOR RESPONDENT:                Tony West, Assistant Attorney General;
26                                      Anthony P. Nicastro, Senior Litigation
27                                      Counsel; Sabatino F. Leo, Trial
28                                      Attorney, Office of Immigration
29                                      Litigation; United States Department of
30                                      Justice, 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 is

 4   DENIED.

 5       Petitioner Kenny Tjua, a native and citizen of Indonesia,

 6   seeks review of an April 20, 2011, decision of the BIA

 7   affirming the April 16, 2009, decision of an Immigration Judge

 8   (“IJ”) denying her application for asylum, withholding of

 9   removal, and relief under the Convention Against Torture

10   (“CAT”).   In re Tjua, No. A089 253 796 (B.I.A. Apr. 20, 2011),

11   aff’g No. A 089 253 796 (Immig. Ct. N.Y.C. Apr. 16, 2009).      We

12   assume the parties’ familiarity with the underlying facts and

13   procedural history of the case.

14       We have reviewed “both the IJ’s and the BIA’s opinions

15   ‘for the sake of completeness.’”   Zaman v. Mukasey, 514 F.3d

16   233, 237 (2d Cir. 2008).   The applicable standards of review

17   are well established.   See 8 U.S.C. § 1252(b)(4)(B); see also

18   Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).

19   For applications governed by the REAL ID Act of 2005, an

20   immigration judge may, considering the totality of the

21   circumstances, base a credibility finding on an applicant’s

22   demeanor, the plausibility of her account, and inconsistencies


                                    2
 1   in her statements, without regard to whether those

 2   inconsistencies go “to the heart of the applicant’s claim.”            8

 3   U.S.C. § 1158(b)(1)(B)(iii); In re J–Y–C–, 24 I. & N. Dec.

 4   260, 265 (B.I.A. 2007).

 5       In this case, substantial evidence supports the IJ’s

 6   determination that Tjua did not testify credibly regarding her

 7   religious practice in the United States.       In so finding, the

 8   IJ reasonably relied on inconsistencies in the record.          See

 9   Xiu Xia Lin, 534 F.3d at 163-64, 166-67.       Tjua initially

10   testified that she attends a Catholic church in Flushing, New

11   York, on Sundays at noon.   As the IJ found, this testimony was

12   inconsistent with the testimony provided by Tjua’s witness,

13   who testified that he sees Tjua every Sunday at 11:00 a.m.

14   services at a Protestant church located in Elmhurst, New York,

15   and that those services do not conclude until 1:30 p.m.         When

16   confronted with this inconsistency, Tjua failed to offer a

17   plausible explanation, stating that she had forgotten to

18   mention the Protestant church.       The IJ reasonably declined to

19   credit that explanation, particularly in light of the fact

20   that Tjua admitted on re-examination that the Protestant

21   church is the church that she attends more regularly.       See

22   Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005)(finding


                                      3
 1   that an immigration judge need not credit an applicant’s

 2   explanations unless those explanations would compel a

 3   reasonable fact-finder to do so).   Accordingly, given the

 4   inconsistencies in the record, the IJ reasonably denied Tjua’s

 5   application for asylum, withholding of removal, and relief

 6   under the CAT, because those claims were based on the same

 7   factual predicate. See Paul v. Gonzales, 444 F.3d 148, 155-56

 8   (2d Cir. 2006).

 9       For the foregoing reasons, the petition for review is

10   DENIED.   As we have completed our review, Tjua’s motion for a

11   stay of removal is DISMISSED as moot. Her request for oral

12   argument in this petition is DENIED in accordance with Federal

13   Rule of Appellate Procedure 34(a)(2), and Second Circuit Local

14   Rule 34.2(c).

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




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