         11-1288-ag
         Kelvin v. Holder
                                                                                        BIA
                                                                                Vomacka, IJ
                                                                               A089 253 381
                             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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 11th day of April, two thousand twelve.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                JOSEPH M. McLAUGHLIN,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _______________________________________
12
13       RODNEY ROSS KELVIN,
14                Petitioner,
15
16                          v.                                  11-1288-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Scott E. Bratton, Margaret Wong &
24                                     Associates, Cleveland, OH.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Lyle D. Jentzer, Senior
28                                     Litigation Counsel; Jeffrey L.
29                                     Menkin, Trial Attorney, Office of
30                                     Immigration Litigation, United
31                                     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

 4   is DISMISSED in part and DENIED in part.

 5       Rodney Ross Kelvin, a native and citizen of Malaysia,

 6   seeks review of a March 21, 2011, decision of the BIA

 7   affirming the December 12, 2008, decision of the Immigration

 8   Judge (“IJ”), which pretermitted his application for asylum

 9   as untimely and denied his applications for withholding of

10   removal and relief under the Convention Against Torture

11   (“CAT”).   In re Rodney Ross Kelvin, No. A089 253 381 (B.I.A.

12   Mar. 21, 2011), aff’g No. A089 253 381 (Immig. Ct. N.Y. City

13   Dec. 12, 2008).   We assume the parties’ familiarity with the

14   underlying facts and procedural history in this case.

15       We have considered both the IJ’s and the BIA’s opinions

16   “for the sake of completeness.”   Zaman v. Mukasey, 514 F.3d

17   233, 237 (2d Cir. 2008)(citation omitted). The applicable

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

19   § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

20   (2d Cir. 2009).

21       We lack jurisdiction to review the agency’s finding

22   that the Petitioner’s asylum application was untimely under

23   8 U.S.C. § 1158(a)(2)(B), or its finding that there existed


                                   2
 1   neither changed circumstances nor extraordinary

 2   circumstances excusing the untimeliness.   See 8 U.S.C.

 3   § 1158(a)(3).   Although we retain jurisdiction to review

 4   constitutional claims and “questions of law,” see 8 U.S.C. §

 5   1252(a)(2)(D), Kelvin’s challenge to the IJ’s finding that

 6   he did not establish changed circumstances is simply a

 7   challenge to the agency’s fact-finding determination and

 8   exercise of discretion, over which we do not have

 9   jurisdiction.   See 8 U.S.C. § 1158(a); Xiao Ji Chen v. U.S.

10   Dep’t of Justice, 471 F.3d 315, 330-31 (2d Cir. 2006).

11   Accordingly, because Kelvin has abandoned any challenge to

12   the agency’s denial of CAT relief, the only issue before us

13   is whether the agency erred in denying withholding of

14   removal.

15       For applications for withholding of removal such as

16   Kelvin’s that are governed by the REAL ID Act of 2005, the

17   agency may, considering the totality of the circumstances,

18   base a credibility finding on an asylum applicant’s

19   “demeanor, candor, or responsiveness,” the plausibility of

20   his account, and inconsistencies in his statements, without

21   regard to whether those inconsistencies go “to the heart of

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

23   Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).

                                   3
 1   This Court “defer[s] . . . to an IJ’s credibility

 2   determination unless, from the totality of the

 3   circumstances, it is plain that no reasonable fact-finder

 4   could make such an adverse credibility ruling.”     Id. at 167.

 5       Here, substantial evidence supports the agency’s

 6   adverse credibility determination. As the agency found,

 7   Kelvin’s testimony that he first sought assistance in filing

 8   his asylum application in March 2007 was inconsistent with

 9   his written statement indicating that he tried to apply for

10   asylum through an “agent” in December 2006, his testimony

11   and written statement regarding the alleged March 2007

12   return visit of the Muslim Religious Officers was

13   implausible because the officers had not taken issue with

14   him during his approximately 50 other prior proselytizing

15   experiences and because a year had elapsed since their

16   previous visit, and the omission in his asylum application

17   regarding the motivation of the Muslim Religious Officers to

18   threaten him because they believed him to be a Muslim went

19   to the heart of his asylum claim.   See Wensheng Yan v.

20   Mukasey, 509 F.3d 63, 67 (2d Cir. 2007); Cheng Tong Wang v.

21   Gonzales, 449 F.3d 451, 435-54 (2d Cir. 2006).    Kelvin

22   attempted to explain the inconsistency by testifying that he

23   began researching his asylum application between December

                                  4
 1   2006 and March 2007, but the agency need not credit Kelvin’s

 2   explanation for his inconsistent testimony unless the

 3   explanation would compel a reasonable fact-finder to do so.

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

 5       Because Kelvin was unable to produce credible evidence

 6   sufficient to establish either past persecution or a clear

 7   probability of future persecution in Malaysia, the agency

 8   did not err in denying his application for withholding of

 9   removal.   See 8 C.F.R. §§ 1208.16(b)(1), (b)(2);

10   Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).

11       For the foregoing reasons, the petition for review is

12   DISMISSED in part and DENIED, in part.   Any pending motion

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

14   Any pending request for oral argument in this petition is

15   DENIED in accordance with Federal Rule of Appellate

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

17                               FOR THE COURT:
18                               Catherine O’Hagan Wolfe, Clerk
19
20




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