     16-3261
     Asghar v. Sessions
                                                                                    BIA
                                                                       Gordon-Uruakpa, IJ
                                                                            A077 643 048

                               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
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 9th day of January, two thousand eighteen.
 5
 6   PRESENT:
 7            PIERRE N. LEVAL,
 8            RICHARD C. WESLEY,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   ALI ASGHAR,
14            Petitioner,
15
16                        v.                                     16-3261
17                                                               NAC
18   JEFFERSON B. SESSIONS, III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                      Usman B. Ahmad, Long Island City,
24                                                                 NY.
25
26   FOR RESPONDENT:                      Chad A. Readler, Acting Assistant
27                                        Attorney General; John S. Hogan,
28                                        Assistant Director; Lindsay
29                                        Corliss, Trial Attorney, Office of
30
31
1                                     Immigration Litigation, U.S.
2                                     Department of Justice, Washington,
3                                     DC.
4
5        UPON DUE CONSIDERATION of this petition for review of a

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

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

 8   is DENIED.

 9       Petitioner Ali Asghar, a native and citizen of Pakistan,

10   seeks review of an August 26, 2016, decision of the BIA that

11   affirmed an April 22, 2014, decision of an Immigration Judge

12   (“IJ”) denying his application for asylum, withholding of

13   removal, and relief under the Convention Against Torture

14   (“CAT”).     In re Ali Asghar, No. A077 643 048 (B.I.A. Aug. 26,

15   2016), aff’g No. A077 643 048 (Immig. Ct. N.Y. City Apr. 22,

16   2014).       We   assume   the    parties’   familiarity   with   the

17   underlying facts and procedural history in this case.

18       Under the circumstances of this case, we have reviewed

19   the decision of the IJ as modified by the BIA, i.e., minus

20   the bases for denying relief that were not challenged

21   before, or affirmed by, the BIA.         See Xue Hong Yang v. U.S.

22   Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).

23   Accordingly, we do not address the IJ’s conclusion that

24   Asghar’s asylum application was untimely, on which the BIA

25   did not rely, or Asghar’s claimed fear of the Taliban,
                                         2
 1   which he abandoned.   Id.   The applicable standards of

 2   review are well established.    Secaida-Rosales v. INS, 331

 3   F.3d 297, 306-07 (2d Cir. 2003), superseded by the REAL ID

 4   Act as recognized in Xiu Xia Lin v. Mukasey, 534 F.3d 162,

 5   163-64 (2d Cir. 2008).

 6       Because Asghar filed his asylum application in 2003,

 7   the REAL ID Act does not apply in this case.    Liang Chen v.

 8   U.S. Att’y Gen., 454 F.3d 103, 106 n.2 (2d Cir. 2006).     In

 9   pre-REAL ID Act cases, an adverse credibility determination

10   must be based on “specific, cogent reasons” that “bear a

11   legitimate nexus” to the finding, and any discrepancy must

12   be substantial when “measured against the whole record.”

13   Secaida-Rosales, 331 F.3d at 307-08.

14       The agency reasonably found Asghar not credible based

15   on inconsistencies regarding whether he was a member of the

16   Sipah-E-Sahaba Pakistan, whether he shot his father’s

17   alleged murderer, and whether he reported the events

18   surrounding his father’s murder to police.     See Tu Lin v.

19   Gonzales, 446 F.3d 395, 402-03 (2d Cir. 2006) (holding that

20   “[a]dverse credibility determinations are appropriately

21   based on inconsistent statements” (internal quotation marks

22   omitted)).   Asghar did not compellingly explain any of the

23   record inconsistencies.     See Majidi v. Gonzales, 430 F.3d
                                     3
1    77, 80 (2d Cir. 2005).

2        Given these record inconsistencies that relate to the

3    heart of Asghar’s claim, the agency’s adverse credibility

4    determination is supported by substantial evidence.

5    See Secaida-Rosales, 331 F.3d at 307; see also Tu Lin, 446

6    F.3d at 402-03.    That determination is dispositive of

7    asylum, withholding of removal, and CAT relief because all

8    three claims are based on the same factual predicate.     See

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

10       For the foregoing reasons, the petition for review is

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

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

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

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

15   in this petition is DENIED in accordance with Federal Rule of

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

17   34.1(b).

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




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