         13-1462
         Gurung v. Holder
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A099 683 525
                                                                               A099 683 526
                              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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 22nd day of August, two thousand fourteen.
 5
 6       PRESENT:
 7                          RALPH K. WINTER,
 8                          GUIDO CALABRESI,
 9                          ROSEMARY S. POOLER,
10                               Circuit Judges.
11
12
13       GHIRME GURUNG, HIRA GURUNG,
14                Petitioners,
15
16                           v.                                 13-1462
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21
22
23       FOR PETITIONERS:                 Jason A. Nielson, Of Counsel,
24                                        Mungoven & Associates, P.C., New
25                                        York, New York.
26
27       FOR RESPONDENT:                  Stuart F. Delery, Assistant Attorney
28                                        General; Edward J. Duffy, Senior
29                                        Litigation Counsel; Katherine A.
 1                          Smith, Trial Attorney, Office of
 2                          Immigration Litigation, U.S.
 3                          Department of Justice, Washington
 4                          D.C.
 5
 6       UPON DUE CONSIDERATION of this petition for review of a

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

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

 9   is DENIED.

10       Petitioners Ghirme and Hira Gurung, natives and

11   citizens of Nepal, seek review of a March 20, 2013, decision

12   of the BIA, affirming the November 19, 2010, decision of

13   Immigration Judge (“IJ”) Alan A. Vomacka, pretermitting

14   Gurung’s asylum application as untimely and denying him

15   withholding of removal and relief under the Convention

16   Against Torture (“CAT”).   In re Ghirme Gurung, Hira Gurung,

17   Nos. A099 683 525/526 (B.I.A. Mar. 20, 2013), aff’g Nos.

18   A099 683 525/526 (Immig. Ct. N.Y. City Nov. 19, 2010).*    We

19   assume the parties’ familiarity with the underlying facts

20   and procedural history in this case.

21       As an initial matter, we are without jurisdiction to

22   consider Gurung’s challenge to the IJ’s pretermission of his


           *
              Hira was included as a derivative beneficiary on
       Ghirme’s asylum application. See 8 U.S.C.
       § 1158(b)(3)(A). This order refers to the lead applicant
       as “Gurung.”
                                   2
 1   asylum application as untimely because he failed to exhaust

 2   his argument on appeal to the BIA, see Karaj v. Gonzales,

 3   462 F.3d 113, 119 & n.2 (2d Cir. 2006).    Because the BIA

 4   explicitly declined to consider the IJ’s burden of proof

 5   finding, the only issue before us is the agency’s denial of

 6   withholding of removal and CAT relief on credibility

 7   grounds.   See Xue Hong Yang v. U.S. Dep’t of Justice, 426

 8   F.3d 520, 522 (2d Cir. 2005); see also Yan Chen v. Gonzales,

 9   417 F.3d 268, 271 (2d Cir. 2005).    The applicable standards

10   of review are well established.     See 8 U.S.C.

11   § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d

12   162, 165-66 (2d Cir. 2008).

13       The agency may, considering the totality of the

14   circumstances, base a credibility finding on an asylum

15   applicant’s demeanor, the plausibility of his account, and

16   inconsistencies in his statements and other record evidence

17   without regard to whether they go “to the heart of the

18   applicant’s claim.”   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

19   Lin, 534 F.3d at 163-64.   Here, substantial evidence

20   supports the agency’s adverse credibility determination.

21       The IJ reasonably relied on Gurung’s demeanor, noting

22   that he was often unresponsive, particularly on cross-


                                   3
 1   examination.     See 8 U.S.C. § 1158(b)(1)(B)(iii); see also

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

 3   This demeanor finding was bolstered by specific examples of

 4   contradictory statements.     See Li Hua Lin v. U.S. Dep’t of

 5   Justice, 453 F.3d 99, 109 (2d Cir. 2006) (“We can be still

 6   more confident in our review of observations about an

 7   applicant’s demeanor where, as here, they are supported by

 8   specific examples of inconsistent testimony.”).     Indeed, the

 9   IJ reasonably found inconsistencies in the record related to

10   whether Maoists attacked Gurung in the morning or the

11   evening, and whether his wife has more than one name.

12   Gurung did not explain these inconsistencies.

13       Having questioned Gurung’s credibility, the agency

14   reasonably relied further on his failure to provide

15   corroborating evidence.     See Biao Yang v. Gonzales, 496 F.3d

16   268, 273 (2d Cir. 2007) (providing that an applicant’s

17   failure to corroborate testimony may bear on credibility,

18   either because the absence of particular corroborating

19   evidence is viewed as suspicious, or because the absence of

20   corroboration in general makes an applicant unable to

21   rehabilitate testimony that has already been called into

22   question).     Given the demeanor, inconsistency, and


                                     4
 1   corroboration findings, the agency reasonably found Gurung

 2   not credible, and denied him withholding of removal and CAT

 3   relief.   See Xiu Xia Lin, 534 F.3d at 163-66; see also Xue

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

 5   Cir. 2005).

 6       For the foregoing reasons, the petition for review is

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

 8   removal that the Court previously granted in this petition

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

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

11   oral argument in this petition is DENIED in accordance with

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

13   Circuit Local Rule 34.1(b).

14                                 FOR THE COURT:
15                                 Catherine O’Hagan Wolfe, Clerk
16
17




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