         12-1347
         Subba v. Holder
                                                                                       BIA
                                                                                Mulligan, IJ
                                                                               A087 445 616
                            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 11th day of October, two thousand thirteen.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                PETER W. HALL,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _______________________________________
12
13       RATNA SUBBA,
14                Petitioner,
15
16                         v.                                   12-1347
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Ramesh K. Shrestha, New York, New
24                                     York.
25
26       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
27                                     Attorney General; Jennifer Williams,
28                                     Senior Litigation Counsel; Lindsay
29                                     W. Zimliki, Attorney, Office of
 1                          Immigration Litigation, United
 2                          States Department of Justice,
 3                          Washington, D.C.
 4
 5       UPON DUE CONSIDERATION of this petition for review of a

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

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

 8   is DENIED.

 9       Petitioner Ratna Subba, a native and citizen of Nepal,

10   seeks review of a March 5, 2012, decision of the BIA

11   affirming the September 22, 2009, decision of Immigration

12   Judge (“IJ”) Thomas J. Mulligan, which denied her

13   application for asylum, withholding of removal, and relief

14   under the Convention Against Torture (“CAT”).     In re Ratna

15   Subba, No. A087 445 616 (B.I.A. Mar. 5, 2012), aff’g No.

16   A087 445 616 (Immig. Ct. N.Y. City Sept. 22, 2009).     We

17   assume the parties’ familiarity with the underlying facts

18   and procedural history in this case.

19       Under the circumstances of this case, we review the

20   IJ’s decision as supplemented by the BIA.     Yan Chen v.

21   Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).     The applicable

22   standards of review are well-established.     See 8 U.S.C.

23   § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d

24   510, 513 (2d Cir. 2009).   For applications such as Subba’s,

25   governed by the amendments made to the Immigration and

                                   2
 1   Nationality Act by the REAL ID Act of 2005, the agency may,

 2   considering the totality of the circumstances, base a

 3   credibility determination on the “demeanor, candor, or

 4   responsiveness of the applicant,” as well as “the

 5   consistency of [the applicant’s] statements with other

 6   evidence of record . . ., without regard to whether an

 7   inconsistency, inaccuracy, or falsehood goes to the heart of

 8   the applicant’s claim.”   8 U.S.C. § 1158(b)(1)(B)(iii); see

 9   also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.

10   2008) (per curiam).   Here, the agency’s adverse credibility

11   determination is supported by substantial evidence.

12       Subba challenges the agency’s finding that her

13   testimony about her attack by Maoists was inconsistent with

14   a corroborative letter from a neighbor.   However, as Subba

15   testified that her neighbor witnessed the attack and “knew”

16   the attackers were Maoists, but his letter stated that the

17   attackers were an “unknown group of people,” the agency

18   reasonably relied on this inconsistency in finding her not

19   credible.   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534

20   F.3d at 167.   Subba’s explanation for the inconsistency –

21   that her neighbor was too afraid to identify the attackers

22   in his letter – is insufficient to compel a contrary

23   conclusion because the explanation contradicts her testimony

                                   3
 1   that the inconsistency was due to a translation mistake.

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

 3   Subba’s related argument that the agency overemphasized her

 4   neighbor’s letter in finding her not credible, where she

 5   submitted other letters from family members and her

 6   political party corroborating her claim, is unpersuasive, as

 7   her neighbor purportedly had personal knowledge of the

 8   attack whereas they did not.   Xiao Ji Chen v. U.S. Dep’t of

 9   Justice, 471 F.3d 315, 341 (2d Cir. 2006); Matter of H-L-H-

10   & Z-Y-Z-, 25 I&N Dec. 209, 215 (BIA 2010), rev’d on other

11   grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir.

12   2012).

13       Subba also challenges the agency’s demeanor findings

14   that her testimony was “contrived” and “evasive” as being

15   “counterintuitive” and legally erroneous.   The IJ observed

16   that during her hearing, Subba “very carefully dabbed her

17   eyes . . . in an attempt to appear upset and convey an

18   expression of emotion,” and provided evasive or non-

19   responsive answers to questions about her alleged Maoist

20   attackers.   Because these findings are tethered to the

21   record, Subba’s explanation that she simply intended to

22   “impress the IJ with the pathos of her plight” is

23   insufficient to overcome the “particular deference” due to

                                    4
 1   the findings.    Jin Chen v. U.S. Dep’t of Justice, 426 F.3d

 2   104, 113 (2d Cir. 2005); Li Hua Lin v. U.S. Dep’t of

 3   Justice, 453 F.3d 99, 109 (2d Cir. 2006).

 4       We have considered Subba’s remaining arguments and find

 5   that they lack merit.    Accordingly, as the agency’s adverse

 6   credibility determination is supported by substantial

 7   evidence, we will defer to that ruling.     Xiu Xia Lin, 534

 8   F.3d at 167.    As the only evidence of a threat to Subba’s

 9   life or freedom depended upon her credibility, the adverse

10   credibility determination is dispositive of her claims for

11   relief.   Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

12       For the foregoing reasons, the petition for review is

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

14   removal that the Court previously granted in this petition

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

16   this petition is DENIED as moot.    Any pending request for

17   oral argument in this petition is DENIED in accordance with

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

19   Circuit Local Rule 34.1(b).

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




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