         09-1728-ag
         Dolkar v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A095 687 978
                             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 4 th day of March, two thousand ten.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                PETER W. HALL,
 9                GERARD E. LYNCH,
10                   Circuit Judges.
11       _______________________________________
12
13       KARMA DOLKAR,
14                Petitioner,
15
16                          v.                                  09-1728-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Khagendra Gharti-Chhetry, New York,
24                                     New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Ernesto H. Molina, Jr.,
28                                     Assistant Director; M. Lee Quinn,
29                                     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 DENIED.

5        Karma Dolkar, a native and citizen of Tibet, 1 seeks

6    review of a March 27, 2009, order of the BIA affirming the

7    March 18, 2008, decision of Immigration Judge (“IJ”) Barbara

8    A. Nelson, which denied her application for asylum,

9    withholding of removal, and relief under the Convention

10   Against Torture (“CAT”).   In re Karma Dolkar, No. A096 687

11   978 (B.I.A. Mar. 27, 2009), aff’g No. A096 687 978 (Immig.

12   Ct. N.Y. City Mar. 18, 2008).       We assume the parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15       Under the circumstances of this case, we review the

16   decision of the IJ as supplemented by the BIA.       See Yan Chen

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

18   applicable standards of review are well-established.         See

19   8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey,


           1
            Tibet is now an “autonomous region” of China. See
       U.S. Dep't of State, Bureau of East Asian Affairs,
       Background Note: China,
       http://www.state.gov/r/pa/ei/bgn/18902.htm (last visited
       Feb. 18, 2010).

                                     2
1    534 F.3d 162, 165-66 (2d Cir. 2008) ; Manzur v. U.S. Dep’t of

2    Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007).

3    I.   Past Persecution: Adverse Credibility

4         Substantial evidence supports the agency’s

5    determination that Dolkar’s claim regarding her past

6    persecution, based on the alleged repeated rape of her

7    mother by Chinese police, was not credible .   Under the

8    substantial evidence standard, “we defer to an IJ’s

9    credibility determination unless, from the totality of the

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

11   could make such an adverse credibility ruling.”    Xiu Xia

12   Lin, 534 F.3d at 167.   For asylum applications governed by

13   the REAL ID Act, the agency may, considering the totality of

14   the circumstances, base a credibility finding on an asylum

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

16   plausibility of his or her account, and inconsistencies in

17   his or her statements, without regard to whether they go “to

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

19   § 1158(b)(1)(B)(iii).    Although the agency must consider an

20   explanation the applicant offers for inconsistencies in the

21   record, it need not credit that explanation unless a

22   reasonable fact-finder would be compelled to do so.    See


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

2          Here , the agency based its adverse credibility

3    determination on inconsistencies and implausible testimony

4    in the record including: (1) the inconsistency between

5    Dolkar’s testimony that the police raped her mother two to

6    three times a week over six months and a letter from her

7    mother making only a veiled reference to being raped on one

8    occasion; (2) the inconsistency between Dolkar’s testimony

9    that she witnessed her mother being raped and her later

10   testimony that her mother told her about the rapes over the

11   phone when she was already in the U.S.; (3) the

12   inconsistency between Dolkar’s testimony that she is a

13   citizen of Tibet and her “Green Book” which states she is a

14   citizen of Nepal; and (4) the inconsistency between her

15   statement at her airport interview that she came to the U.S.

16   to find a job and “earn some money,” and her testimony that

17   she intended to come to the U.S. to seek asylum.        Such

18   inconsistencies were an adequate basis for the agency’s

19   adverse credibility determination.       See 8 U.S.C.

20   § 1158(b)(1)(B)(iii).   To the extent that Dolkar offered

21   explanations for any of the inconsistencies, the agency was

22   not compelled to credit them.       See Majidi, 430 F.3d at 80-

23   81.

                                     4
1    II.   Well-Founded Fear: Burden of Proof

2          Substantial evidence also supports the agency’s finding

3    that Dolkar failed to establish a well-founded fear of

4    persecution based on an alleged pattern or practice of

5    persecution of Buddhist Tibetan nationals by the Chinese

6    government.   To establish asylum eligibility based on future

7    persecution, an applicant must show that he or she

8    subjectively fears persecution and that this fear is

9    objectively reasonable.    Ramsameachire v. Ashcroft, 357 F.3d

10   169, 178 (2d Cir. 2004).    Moreover, an applicant is not

11   required to demonstrate that she would be individually

12   singled out for persecution if she can demonstrate a pattern

13   or practice of persecution of a group of persons similarly

14   situated to her on account of a protected ground and her own

15   inclusion in or identification with that group.      See

16   8 C.F.R. §§ 208.13(b)(2), 208.16(b)(2); Mufied v. Mukasey,

17   508 F.3d 88, 91 (2d Cir. 2007); Kho v. Keisler, 505 F.3d 50

18   (3d Cir. 2007).

19         Contrary to Dolkar’s argument, the agency explicitly

20   considered the background evidence in finding that she

21   failed to establish a pattern or practice of persecution.

22   See Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006).

23         While Dolkar asserts that she is entitled to
                                    5
1    withholding of removal from Nepal , the agency reasonably

2    concluded that the record indicated that it is typically

3    recent refugees that are subject to harm in Nepal. See Xiao

4    Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 n.17 (2d

5    Cir. 2006) .

6         Finally, Dolkar’s argument that the agency erred in

7    failing to address separately her CAT claim fails because

8    her CAT claim is based on the same factual predicate as her

9    asylum and withholding of removal applications, and the

10   agency’s denial of those claims necessarily precluded her

11   from establishing eligibility for CAT relief.    See Xue Hong

12   Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.

13   2005).

14        For the foregoing reasons, the petition for review is

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

16   removal that the Court previously granted in this petition

17   is VACATED, and any pending motion for a stay of removal in

18   this petition is DISMISSED as moot. Any pending request for

19   oral argument in this petition is DENIED in accordance with

20   Federal Rule of Appellate Procedure 34(a)(2), and Second

21   Circuit Local Rule 34.1(b).

22                                 FOR THE COURT:
23                                 Catherine O’Hagan Wolfe, Clerk
24
25
26


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