09-3449-ag
Tamang v. Holder
                                                                                BIA
                                                                           Romig, IJ
                                                                        A099 686 806
                    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.


     At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 22 nd day of June, two thousand ten.

PRESENT:
         JON O. NEWMAN,
         JOSÉ A. CABRANES,
         DEBRA ANN LIVINGSTON,
                  Circuit Judges.
_______________________________________

BIR BAHADUR TAMANG,
         Petitioner,

                   v.                                              09-3449-ag
                                                                          NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
         Respondent.
_______________________________________

FOR PETITIONER:                Gary J. Yerman, New York, New York.

FOR RESPONDENT:                Tony West, Assistant Attorney General;
                               Linda S. Wernery, Assistant Director;
                               Janice K. Redfern, Senior Litigation
                               Counsel,    Office   of    Immigration
                               Litigation, United States Department
                               of Justice, Washington, D.C.
      UPON DUE CONSIDERATION of this petition for review of a

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

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

is DENIED.

      Bir Bahadur Tamang, a native and citizen of Nepal, seeks

review of a July 21, 2009, order of the BIA affirming the

September    25,       2007,   decision     of   Immigration      Judge      (“IJ”)

Jeffrey L. Romig, which denied his applications for asylum,

withholding       of    removal,     and    relief     under   the     Convention

Against Torture (“CAT”).             In re Bir Bahadur Tamang, No. A099

686 806 (B.I.A. July 21, 2009), aff’g No. A099 686 806 (Immig.

Ct.   N.Y.   City      Sept.   25,    2007).      We    assume    the    parties’

familiarity with the underlying facts and procedural history

in this case.

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

decision as supplemented by the BIA’s decision.                    See Yan Chen

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

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

§ 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d

162, 165-66 (2d Cir. 2008).

      Substantial         evidence         supports     the      IJ’s       adverse

credibility determination.             For asylum applications governed


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by the REAL ID Act, the agency may, considering the totality

of the circumstances, base a credibility finding on an asylum

applicant’s        “demeanor,        candor,      or     responsiveness,”            the

plausibility of his or her account, and inconsistencies in his

or her statements, without regard to whether they go “to the

heart    of       the      applicant’s          claim.”           See    8      U.S.C.

§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.

      We defer to the IJ’s finding that Tamang’s non-responsive

demeanor undermined his credibility.                    See Majidi v. Gonzales,

430 F.3d 77, 81 n.1 (2d Cir. 2005); Shu Wen Sun v. Board of

Immigration Appeals, 510 F.3d 377, 380-81 (2d Cir. 2007).

Additionally, the IJ reasonably based his adverse credibility

determination        on    several    inconsistencies            between      Tamang’s

testimony,        his     written    application,          and    his    supporting

evidence.         For example, the IJ noted that although Tamang

testified     that       Maoists    came    to    his     house    one   night       and

threatened him, he failed to mention this visit in his asylum

application, despite it being the only physical encounter he

had   with    his       alleged    persecutors.           Moreover,      as    the    IJ

observed, Tamang testified inconsistently concerning whether

he went into hiding in Nepal and what ultimately prompted him

to flee.          Contrary to Tamang’s argument, the IJ was not

required     to    afford    him     an    opportunity      to    reconcile       this



                                          -3-
discrepant    testimony,    because       these     inconsistencies     were

“self-evident.” See Majidi, 430 F.3d at 81; see also Xian Tuan

Ye v. DHS, 446 F.3d 289, 295-96 (2d Cir. 2006).

       Although the IJ made additional findings, we need not

address    them   because   the    discrepancies       we   have   discussed

provide     ample    support       for        his   adverse     credibility

determination.      See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

Lin, 534 F.3d at 167.          Because Tamang’s claims for asylum,

withholding of removal, and CAT relief were all based on the

same   factual    predicate,      each   of    those   claims   necessarily

fails.     See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,

523 (2d Cir. 2005).

       For the foregoing reasons, the petition for review is

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

that the Court previously granted in this petition is VACATED,

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

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

this petition is DENIED in accordance with Federal Rule of

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

34.1(b).

                                    FOR THE COURT:
                                    Catherine O’Hagan Wolfe, Clerk




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