    12-1531
    Tas v. Holder
                                                                                  BIA
                                                                               Hom, IJ
                                                                          A078 227 092
                     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 Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 17th day of July, two thousand thirteen.

    PRESENT:
             JON O. NEWMAN,
             PIERRE N. LEVAL,
             JOSÉ A. CABRANES,
                  Circuit Judges.
    _______________________________________

    MAHMUT TAS,
             Petitioner,

                    v.                                     12-1531
                                                           NAC
    ERIC H. HOLDER, JR.,
    UNITED STATES ATTORNEY GENERAL,
             Respondent.
    ______________________________________

    FOR PETITIONER:               Andrew P. Johnson, New York, NY.

    FOR RESPONDENT:               Stuart Delery, Acting Assistant
                                  Attorney General; Alison Marie Igoe,
                                  Senior Counsel; Jeffrey L. Menkin,
                                  Senior Counsel, Office of
                                  Immigration Litigation, U.S.
                                  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, in part, and DISMISSED, in part.

    Petitioner Mahmut Tas, a native and citizen of Turkey,

seeks review of the March 29, 2012, decision of the BIA

affirming the August 6, 2010, decision of Immigration Judge

(“IJ”) Sandy K. Hom, which denied Tas’s applications for

asylum, withholding of removal, and adjustment of status.

In re Mahmut Tas, No. A078 227 092 (B.I.A. Mar. 29, 2012),

aff’g No. A078 227 092 (Immig. Ct. N.Y. City Aug. 6, 2010).

We assume the parties’ familiarity with the underlying facts

and procedural history.

    Under the circumstances of this case, we have reviewed

both the IJ’s and BIA’s decisions.    See Zaman v. Mukasey,

514 F.3d 233, 237 (2d Cir. 2008).    We review the agency’s

factual findings, including adverse credibility findings,

under the substantial evidence standard, treating them as

“conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.”    8 U.S.C.

§ 1252(b)(4)(B).   We review questions of law de novo.

Aliyev v. Mukasey, 549 F.3d 111, 115 (2d Cir. 2008).


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I.   Asylum & Withholding of Removal – The “Persecutor Bar”

     The agency did not err in finding that Tas was

statutorily ineligible for asylum and withholding of removal

under the persecutor bar.    Under sections 1158(b)(2)(A)(i)

and 1231(b)(3)(B)(i) of title 8 of the U.S. code, an alien

who has “ordered, incited, assisted, or otherwise

participated in the persecution of any person on account of

race, religion, nationality, membership in a particular

social group, or political opinion” is ineligible for asylum

or withholding of removal.    These provisions are known

collectively as the “persecutor bar.”    Xu Sheng Gao v. U.S.

Att’y Gen., 500 F.3d 93, 98 (2d Cir. 2007).    Under the

Immigration and Nationality Act (“INA”) and regulations, the

burden of proof is on the alien to show eligibility for

asylum and withholding of removal, see 8 U.S.C.

§§ 1158(b)(1)(B)(i), 1231(b)(3)(C); 8 C.F.R. §§ 1208.13(a),

1208.16(a), and where the evidence indicates that the alien

assisted or participated in persecution, the alien has “the

burden of proving by a preponderance of the evidence that he

[] did not so act.”   Zhang Jian Xie v. INS, 434 F.3d 136,

139 (2d Cir. 2006) (quoting 8 C.F.R. § 208.13(c)).




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    This Court has identified four factors underpinning the

persecutor bar.   See Balachova v. Mukasey, 547 F.3d 374, 384

(2d Cir. 2008).   “First, the alien must have been involved

in acts of persecution,” as the term is defined in the INA’s

definition of “refugee.”   Id.       Second, a “nexus must be

shown between the persecution and the victim’s race,

religion, nationality, membership in a particular social

group, or political opinion.”        Id.   Third, if the alien did

not incite, order, or actively carry out the persecution,

his conduct “must have assisted the persecution.”         Id.

(internal quotation marks omitted); see also Fedorenko v.

United States, 449 U.S. 490, 512 n.34 (1981) (identifying a

type of conduct that amounts to assistance in persecution

and distinguishing it from conduct that does not).        Finally,

the applicant must have had “sufficient knowledge that his .

. . actions may assist in persecution to make those actions

culpable.”   Balachova, 457 F.3d at 385.

    Under this framework, Tas’s asylum application and an

asylum officer’s assessment memorandum — both of which

memorialized Tas’s admission that he had shot and beat

ethnic Kurds while serving in the Turkish military —

presented strong evidence that he was, in fact, a

persecutor, and therefore he bore the burden of showing that

                                 4
he was not.   See Zhang Jian Xie, 434 F.3d at 139.   To

satisfy his burden, Tas relied solely on his own testimony

that he did not personally beat or shoot any Kurdish

civilians, but rather witnessed other soldiers in his

military unit commit such acts.

    However, the IJ reasonably credited the statements from

Tas’s asylum application and asylum interview, given that

those statements bore a greater indicia of reliability

because they were made before Tas was put on notice by the

asylum officer that he might be subject to the persecutor

bar due to his conduct in the Turkish military, and thus

before he had incentive to modify his testimony in response

to officer’s assessment.   See Majidi v. Gonzales, 430 F.3d

77, 80-81 (2d Cir. 2005) (explaining that, although an IJ

must consider an applicant’s explanations, he need not

credit them unless a reasonable fact-finder would be

compelled to do so); see also Xiao Ji Chen v. U.S. Dep’t of

Justice, 471 F.3d 315, 342 (2d Cir. 2006) (finding the

weight afforded to an applicant’s testimony and evidence in

immigration proceedings lies largely within the discretion

of the agency).

    The IJ also reasonably relied on these dramatic

discrepancies in the record to further discredit Tas’s

                              5
testimony.   See Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d

Cir. 2006) (“even where an IJ relies on discrepancies or

lacunae that, if taken separately, concern matters

collateral or ancillary to the claim, ... the cumulative

effect may nevertheless be deemed consequential by the fact-

finder”); Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.

2003) (in pre-REAL ID Act cases, an adverse credibility

determination must be based on “specific, cogent reasons”

that “bear a legitimate nexus” to the finding, and any

discrepancy must be “substantial” when measured against the

record as a whole).

    Thus, having reasonably credited Tas’s statements from

his asylum application and asylum interview that he shot and

beat ethnic Kurds as a member of the Turkish military, the

agency further properly determined that such conduct was

sufficient to invoke the persecutor bar, as it constituted

“assistance” in persecution. See Balachova, 547 F.3d at 385

(“Where the conduct was active and has direct consequences

for the victims, we have concluded that it was assistance in

persecution”) (internal quotation omitted)).   Tas does not

contest that the persecution bore a nexus to a protected

ground, see id. at 384, and his statement in his asylum

application that he beat “innocent Kurdish villagers,”

                              6
rather than terrorists, belies his argument that he did not

know his conduct assisted in persecution, see id.

Accordingly, the persecutor bar precludes Tas’s eligibility

for relief.    See 8 U.S.C. §§ 1158(b)(2)(A)(i),

1231(b)(3)(B)(i).

II. Adjustment of Status

    We are without jurisdiction to review Tas’s claim that

the agency erred in weighing factors relevant to the

discretionary grant or denial of adjustment of status, as he

does not raise a colorable constitutional claim or question

of law.   See 8 U.S.C. § 1252(a)(2)(B)(i), (D); Guyadin v.

Gonzales, 449 F.3d 465, 468-69 (2d Cir. 2006).     The petition

is therefore dismissed to the extent it challenges the

discretionary denial of his adjustment of status

application.

    For the foregoing reasons, the petition for review is

DENIED in part and DISMISSED in part.    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




                               7
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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