     15-67
     Palmo v. Lynch
                                                                                       BIA
                                                                                  Cheng, IJ
                                                                               A200 179 385

                           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 TO 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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   14th day of December, two thousand sixteen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            BARRINGTON D. PARKER,
 9            DEBRA ANN LIVINGSTON,
10                 Circuit Judges.
11   _____________________________________
12
13   TASHI PALMO, AKA TASHI PALMO LAMA,
14             Petitioner,
15
16                    v.                                             15-67
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Stuart Altman, New York, N.Y.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; Blair T.
27                                       O’Connor,     Assistant    Director;
28                                       Briena L. Strippoli, Trial Attorney;
29                                       Stephanie L. Groff, Law Clerk,
30                                       Office of Immigration Litigation,
31                                       United States Department of Justice,
32                                       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 Tashi Palmo, a native and citizen of Nepal,

6    seeks review of a December 31, 2014, decision of the BIA,

7    affirming an April 15, 2013, decision of an Immigration Judge

8    (“IJ”) denying Palmo’s application for asylum, withholding of

9    removal, and relief under the Convention Against Torture

10   (“CAT”).    In re Tashi Palmo, No. A200 179 385 (B.I.A. Dec. 31,

11   2014), aff’g No. A200 179 385 (Immig. Ct. N.Y. City Apr. 15,

12   2013).    We assume the parties’ familiarity with the underlying

13   facts and procedural history in this case.

14       Under the circumstances of this case, we review the IJ’s

15   decision as modified by the BIA, i.e., minus the bases for

16   denying relief that were not considered by the BIA.    Xue Hong

17   Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).

18   The applicable standards of review are well established.

19   8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

20   165-66 (2d Cir. 2008).

21       For asylum applications like Palmo’s, governed by the REAL

22   ID Act, the agency may, “[c]onsidering the totality of the

                                     2
1    circumstances,” base an adverse credibility determination on

2    an asylum applicant’s “demeanor, candor, or responsiveness,”

3    the plausibility of her account, and inconsistencies in her

4    statements, “without regard to whether” they go “to the heart

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

6    Xia Lin, 534 F.3d at 163-64.       “We defer . . . to an IJ’s

7    credibility determination unless, from the totality of the

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

9    make such an adverse credibility ruling.”   Xiu Xia Lin, 534 F.3d

10   at 167.   Substantial evidence supports the agency’s adverse

11   credibility determination.

12       The adverse credibility determination was properly based

13   on certain omissions from Palmo’s supporting evidence.   See Xiu

14   Xia Lin, 534 F.3d at 166 n.3 (“An inconsistency and an omission

15   are . . . functionally equivalent” for credibility purposes).

16   Palmo testified that she was arrested and detained by the

17   Nepalese police on three different occasions and that, each

18   time, the Tibetan Youth Congress paid a bribe for her release;

19   the letter she submitted from the president of the Tibetan Youth

20   Congress, however, made no mention of Palmo’s arrests or the

21   bribes.   When asked to explain this discrepancy, Palmo said

22   that she asked for the letter in order to prove she was a member

                                    3
1    of the Tibetan Youth Congress, not to detail her involvement

2    in the organization.   The agency was not required to credit this

3    explanation and reasonably found it “troubling” that the

4    organization that had supposedly secured Palmo’s release from

5    detention on multiple occasions made no mention of her arrests.

6    See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005); see also

7    Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d

8    Cir. 2006).

9        The credibility determination was also properly based on

10   omissions from Palmo’s parents’ letter.    See Xiu Xia Lin, 534

11   F.3d at 166 n.3.   Palmo testified that her parents were aware

12   of her membership in the Tibetan Youth Congress, that her father

13   bribed the police when they accused her of participating in

14   another protest, and that her father paid a broker to prepare

15   a fraudulent passport for her to leave Nepal.     When asked why

16   these details were omitted from her parents’ letter, she

17   responded that they “did not understand how much [they had] to

18   mention” and that they were unfamiliar with legal terms.     The

19   agency was not required to credit Palmo’s explanations for these

20   omissions.    Majidi, 430 F.3d at 80.

21       The agency also reasonably relied on Palmo’s demeanor,

22   noting that her testimony appeared “somewhat rehearsed and

                                     4
1    memorized” and that she was unable to “answer simple questions

2    posed by her attorney but rather continue[d] to follow [] her

3    statement.”   See Xiu Xia Lin, 534 F.3d at 167.      Particular

4    deference is given to the trier of fact’s assessment of

5    demeanor, and the record supports the IJ’s demeanor finding.

6    See Majidi, 430 F.3d at 81 n.1; Li Hua Lin v. U.S. Dep’t of

7    Justice, 453 F.3d 99, 109 (2d Cir. 2006) (“We can be still more

8    confident in our review of observations about an applicant’s

9    demeanor where, as here, they are supported by specific examples

10   of inconsistent testimony.”).

11       Considering the totality of the circumstances, it cannot

12   be said “that no reasonable fact-finder could make such a

13   credibility ruling.”    Xiu Xia Lin, 534 F.3d at 167.   Because

14   all forms of relief (asylum, withholding of removal, and CAT

15   relief) were based on the same factual predicate, the adverse

16   credibility determination is dispositive of all three.     Paul

17   v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

18       For the foregoing reasons, the petition for review is

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

20   that the Court previously granted in this petition is VACATED,

21   and any pending motion for a stay of removal in this petition

22   is DISMISSED as moot.   Any pending request for oral argument

                                     5
1   in this petition is DENIED in accordance with Federal Rule of

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

3   34.1(b).

4                               FOR THE COURT:
5                               Catherine O’Hagan Wolfe, Clerk




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