     14-2316
     Peiris v. Lynch
                                                                                        BIA
                                                                                   Nelson, IJ
                                                                            A087 980 827/828
                            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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   21st day of December, two thousand fifteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            DEBRA ANN LIVINGSTON,
 9            GERARD E. LYNCH,
10                 Circuit Judges.
11   _____________________________________
12
13   HETTIARACHCHIGE VIDYA PEIRIS, AND
14   CHAMI DILANKA PEIRIS POLWATTAGE,
15            Petitioners,
16
17                     v.                                            14-2316
18                                                                   NAC
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONERS:                    Visuvanathan Rudrakumaran, New
25                                       York, New York.
26
27   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
28                                       Assistant Attorney General; Cindy S.
29                                       Ferrier, Assistant Director; Surell
30                                       Brady, Trial Attorney, Office of
31                                       Immigration Litigation, United
32                                       States Department of Justice,
33                                       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 is

4    DENIED.

5        Petitioners Hettiarachchige Vidya Peiris and Chami Dilanka

6    Peiris Polwattage, natives and citizens of Sri Lanka, seek

7    review of a May 28, 2014, decision of the BIA affirming an

8    October 6, 2011, decision of an Immigration Judge (“IJ”) denying

9    petitioners’ applications for asylum, withholding of removal,

10   and relief under the Convention Against Torture (“CAT”).      In

11   re Hettiarachchige Vidya Viramanie Peiris and Chami Dilanka

12   Peiris Polwattage, Nos. A087 980 827/828 (B.I.A. May 28, 2014),

13   aff’g Nos. A087 980 827/828 (Immig. Ct. N.Y. City Oct. 6, 2011).

14   We assume the parties’ familiarity with the underlying facts

15   and procedural history in this case.

16       Under the circumstances of this case, we have reviewed the

17   IJ’s decision as modified by the BIA.    Accordingly, we address

18   only the adverse credibility determination.     Xue Hong Yang v.

19   U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).      In

20   reviewing that determination, we have considered all of the IJ’s

21   grounds for the ruling.   Yun-Zui Guan v. Gonzales, 432 F.3d 391,

22   394 (2d Cir. 2005).   The applicable standards of review are well
                                     2
1    established.    See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

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

3        For asylum applications governed by the REAL ID Act, the

4    agency may, “[c]onsidering the totality of the circumstances,”

5    base a credibility finding on an asylum applicant’s “demeanor,

6    candor or responsiveness,” the plausibility of his or her

7    account, and inconsistencies in his or her statements, “without

8    regard to whether” they go “to the heart of the applicant’s

9    claim.”   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey,

10   534 F.3d 162, 167 (2d Cir. 2008).        “We defer therefore to an

11   IJ’s credibility finding unless, from the totality of the

12   circumstances, it is plain that no reasonable fact-finder could

13   make such an adverse credibility ruling.”        Xiu Xia Lin, 534 F.3d

14   at 167.

15       Substantial    evidence     supports    the    agency’s   adverse

16   credibility    determination,    which     was    largely   based   on

17   implausible testimony. The agency reasonably found implausible

18   Peiris’s assertion that her husband was suspected of supporting

19   a terrorist group, given evidence that she later worked for the

20   Sri Lankan foreign ministry.     We uphold an IJ’s implausibility

21   finding “unless we are left with the definite and firm

22   conviction that a mistake has been committed,” Ming Xia Chen
                                      3
1    v. BIA, 435 F.3d 141, 145 (2d Cir. 2006) (internal quotation

2    marks omitted), as long as the finding is “tethered to record

3    evidence,” Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir.

4    2007).

5        The    agency’s    implausibility        finding    is   supported   by

6    Peiris’s varying explanations for why she did not apply for

7    asylum in either Austria or the United Kingdom.               At different

8    points in her testimony, she supplied at least two answers when

9    asked why she did not seek asylum in Austria, and three different

10   answers when asked why she did not seek asylum in the United

11   Kingdom.   Petitioners contend on appeal that their failure to

12   apply for asylum in other countries is, under the circumstances

13   of her case, immaterial to petitioners’ eligibility for asylum

14   in the United States; however, the inconsistent answers on the

15   subject support the agency’s implausibility finding.

16       Peiris tried to explain her implausible testimony by

17   asserting that the army and the foreign ministry have no

18   communications      with     each   other.     The     agency   reasonably

19   declined to credit this explanation.           Cf. Majidi v. Gonzales,

20   430 F.3d 77, 80-81 (2d Cir. 2005).

21       The    agency     also    reasonably     relied     on   Peiris’s    and

22   Polwattage’s inconsistent account of the 2008 incident with
                                          4
1    army officers.   Peiris unambiguously testified that, when army

2    officers entered her house in 2008, they held her son at

3    gunpoint; Polwattage, however, testified that he was asleep and

4    only found out that soldiers had come after he woke up and found

5    his mother gone.    This serious inconsistency supports the

6    agency’s adverse credibility determination.    See Xian Tuan Ye

7    v. Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006).

8    The agency did not, as petitioners argue, arbitrarily accept

9    Polwattage’s testimony over Peiris’s; rather it relied on the

10   inconsistency between the petitioners’ accounts to discredit

11   them both.

12       Considering the foregoing, the IJ’s adverse credibility

13   determination is supported by substantial evidence.    8 U.S.C.

14   § 1252(b)(4)(B); Xiu Xia Lin, 534 F.3d at 165-66.   This finding

15   was sufficient to deny asylum, withholding of removal, and CAT

16   relief, as all three claims were based upon the same factual

17   predicate.   See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.

18   2006).   Further, to the extent that petitioners assert a claim

19   that Sri Lanka has a pattern or practice of persecuting persons

20   suspected of cooperating with terrorist groups, the adverse

21   credibility determination is dispositive.      Unlike in Paul,

22   which involved an adverse credibility determination as to past
                                    5
1    persecution but a determination that the petitioner testified

2    credibly regarding his religious identity, the agency’s adverse

3    credibility determination in this case was not bifurcated:

4    petitioners’ claims that they are suspected of cooperating with

5    a terrorist group are doomed by the credibility determination.

6    Cf. id.

7        For the foregoing reasons, the petition for review is

8    DENIED.

 9                                FOR THE COURT:
10                                Catherine O=Hagan Wolfe, Clerk




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