         11-2754
         Mukhamedjanova v. Holder
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A087 563 662
                              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 25th day of March, two thousand thirteen.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                ROBERT A. KATZMANN,
10                GERARD E. LYNCH,
11                     Circuit Judges.
12       _____________________________________
13
14       GULNORA ABRAROVNA MUKHAMEDJANOVA,
15                Petitioner,
16
17                         v.                                   11-2754
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24
25
26       FOR PETITIONER:               Alexander J. Segal, Grinberg &
27                                     Segal, PLLC, New York, New York.
28
 1   FOR RESPONDENT:        Stuart F. Delery, Acting Assistant
 2                          Attorney General; Ernesto H. Molina,
 3                          Jr., Assistant Director; Joanna L.
 4                          Watson, Trial Attorney, Office of
 5                          Immigration Litigation, United
 6                          States Department of Justice,
 7                          Washington, D.C.
 8
 9       UPON DUE CONSIDERATION of this petition for review of a

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

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

12   is DISMISSED in part and DENIED in part.

13       Gulnora Abrarovna Mukhamedjanova, a native of the

14   former Soviet Union and a citizen of Uzbekistan, seeks

15   review of a June 6, 2011, decision of the BIA affirming the

16   May 14, 2010, decision of Immigration Judge (“IJ”) Alan

17   Vomacka, which denied her application for asylum,

18   withholding of removal, and relief under the Convention

19   Against Torture (“CAT”).   In re Gulnora Abrarovna

20   Mukhamedjanova, No. A087 563 662 (B.I.A. June 6, 2011),

21   aff’g No. A087 563 662 (Immig. Ct. N.Y. City May 14, 2010).

22   We assume the parties’ familiarity with the underlying facts

23   and procedural history in this case.

24       Under the circumstances of this case, we have reviewed

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

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


                                   2
 1   applicable standards of review are well-established.     See

 2   8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,

 3   562 F.3d 510, 513 (2d Cir. 2009).    Mukhamedjanova challenges

 4   the pretermission of her asylum application as untimely, the

 5   adverse credibility determination, and the denial of her

 6   motion to remand.

 7   I. Asylum

 8       Under 8 U.S.C. § 1158(a)(3), no court shall have

 9   jurisdiction to review the agency’s finding that an asylum

10   application was untimely under § 1158(a)(2)(B), or its

11   finding of neither changed nor extraordinary circumstances

12   excusing the untimeliness under § 1158(a)(2)(D), unless the

13   petition raises a constitutional claim or a question of law,

14   8 U.S.C. § 1252(a)(2)(D).    Because Mukhamedjanova challenges

15   only a factual determination and the agency’s exercise of

16   discretion, the petition is dismissed as to Mukhamedjanova’s

17   asylum claim. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471

18   F.3d 315, 329 (2d Cir. 2006).

19   II. Withholding of Removal

20       For applications (such as Mukhamedjanova’s) that are

21   governed by the amendments made to the Immigration and

22   Nationality Act by the REAL ID Act of 2005, the agency may,


                                     3
 1   considering the totality of the circumstances, base a

 2   credibility determination on the “demeanor, candor, or

 3   responsiveness of the applicant...the internal consistency

 4   of [the applicant’s] statement[s], [and] the consistency of

 5   such statements with other evidence of record ... without

 6   regard to whether an inconsistency ... goes the heart of the

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

 8   8 U.S.C. § 1231(b)(3)(C) (incorporating § 1158(b)(1)(B)(iii)

 9   for withholding of removal); Xiu Xia Lin v. Mukasey, 534

10   F.3d 162, 167 (2d Cir. 2008) (per curiam).

11       The agency found that Mukhamedjanova was not credible

12   because of inconsistent testimony regarding when she learned

13   of a friend’s activity with the Birlik Party, how often she

14   attended Party meetings, whether another friend was arrested

15   in 2007 or 2008, whether she was detained while interrogated

16   at a prosecutor’s office in 2008, when she met a former

17   partner, and whether she received threatening phone calls

18   from her former partner’s husband.   Because Mukhamedjanova

19   does not dispute that her testimony was internally

20   inconsistent regarding her meeting attendance, or that her

21   application omitted the threats from her partner’s husband,

22   and because the remaining inconsistencies are supported by


                                   4
 1   the record, the adverse credibility determination is

 2   supported by substantial evidence.   See Xiu Xia Lin, 534

 3   F.3d at 167.

 4       Moreover, the adverse credibility determination is

 5   further supported by the agency’s conclusion that

 6   Mukhamedjanova’s testimony about her involvement with the

 7   Birlik Party was vague, confused and unresponsive.       See

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

 9       Since Mukhamedjanova’s credibility was thus called into

10   question, the agency was permitted to rely in addition on

11   her failure to proffer corroboration.     Biao Yang v.

12   Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (per curiam),

13   without following the procedural requirements in 8 U.S.C.

14   § 1158(b)(1)(B)(ii), see Xiao Ji Chen, 471 F.3d at 342

15   (explaining requirement that IJ identify and discuss

16   availability of each piece of corroborative evidence applies

17   only to otherwise credible applicants).

18       Mukhamedjanova argues that the agency’s adverse

19   credibility determination did not reach her fear of future

20   persecution because it did not enter an explicit finding as

21   to her sexual orientation.   However, the IJ explicitly cited

22   her inconsistent testimony and lack of corroboration on this

23   point as part of the adverse credibility determination.
                                   5
 1   III. Motion to Remand

 2       Finally, the agency did not abuse its discretion in

 3   denying remand because the evidence Mukhamedjanova submitted

 4   did not rehabilitate her credibility and thus was not

 5   material to her claim.   See Sanusi v. Gonzales, 445 F.3d

 6   193, 200-01 (2d Cir. 2006); Kaur v. BIA, 413 F.3d 232, 233

 7   (2d Cir. 2005) (per curiam).

 8       For the foregoing reasons, the petition for review is

 9   DISMISSED in part and DENIED in part.   As we have completed

10   our review, any stay of removal that the Court previously

11   granted in this petition is VACATED, and any pending motion

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

13   Any pending request for oral argument in this petition is

14   DENIED in accordance with Federal Rule of Appellate

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

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




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