         11-2194-ag
         Ahmed v. Holder
                                                                                       BIA
                                                                                   Chew, IJ
                                                                               A093 448 089
                            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 24th day of April, two thousand twelve.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                ROBERT A. KATZMANN,
 9                RICHARD C. WESLEY,
10                     Circuit Judges.
11       _______________________________________
12
13       EJAZ AHMED, AKA EJAZ AHMAD,
14                Petitioner,
15
16                         v.                                   11-2194-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Theodore N. Cox, New York, New York
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; Russell J.E. Verby, Senior
27                                     Litigation Counsel; Kristen
28                                     Giuffreda Chapman, Trial Attorney,
29                                     Office of Immigration Litigation,
30                                     United States Department of Justice,
31                                     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       Ejaz Ahmed, a native and citizen of Pakistan, seeks

 6   review of a May 20, 2011, decision of the BIA affirming the

 7   August 31, 2009, decision of Immigration Judge (“IJ”) George

 8   T. Chew, which denied his application for asylum,

 9   withholding of removal, and relief under the Convention

10   Against Torture (“CAT”).    In re Ejaz Ahmed, No. A093 448 089

11   (B.I.A. May 20, 2011), aff’g No. A093 448 089 (Immig. Ct.

12   N.Y. City Aug. 31, 2009).   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 have reviewed

16   the IJ’s decision 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 Yanqin Weng v. Holder,

20   562 F.3d 510, 513 (2d Cir. 2009).

21       For asylum applications such as Ahmed’s, governed by

22   the amendments made to the Immigration and Nationality Act

23   by the REAL ID Act of 2005, the agency may, considering the

                                    2
 1   totality of the circumstances, base a credibility finding on

 2   inconsistencies in the applicant’s statements, without

 3   regard to whether the inconsistencies go “to the heart of

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

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

 6   In this case, substantial evidence supports the agency’s

 7   adverse credibility determination, based on both

 8   inconsistencies between Ahmed’s testimony and an affidavit

 9   he provided in support of his asylum application as well as

10   material omissions in his asylum application.

11       In an affidavit included with his asylum application,

12   Ahmed stated that on or about June 16, 2007, “ruffians” from

13   the Muslim Conference in Muzaffarabad attacked his home,

14   damaged his household goods, used “nasty” language, and

15   “severally [sic] beat [him] and injured [him].”    However,

16   Ahmed testified that he was not home during the time of the

17   attack, and that his servant was injured and not himself

18   personally.   As noted by the BIA, Ahmed testified that he

19   told the police he himself had been injured because he was

20   afraid they would not otherwise take the report.    However,

21   Ahmed’s explanation of why he conflated his servant’s

22   experience with his own to the police did not explain why he


                                   3
 1   repeated that he had been beaten in a sworn statement.        See

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

 3   agency need not credit an applicant’s explanations for

 4   inconsistent testimony unless those explanations would

 5   compel a reasonable fact-finder to do so).

 6       In addition, Ahmed failed to disclose in his asylum

 7   application that he departed for the United States and

 8   returned to Pakistan after an alleged incident of past

 9   persecution.   The agency properly relied upon these

10   inconsistencies and omissions in finding Ahmed not credible.

11   See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at

12   166 (“[a]n inconsistency and an omission are . . .

13   functionally equivalent”).

14       Therefore, in this case, the totality of the

15   circumstances supports the agency’s adverse credibility

16   determination, and we will defer to that finding. See

17   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.

18   Because the only evidence of a threat to Ahmed’s life or

19   freedom was his testimony, the well-founded adverse

20   credibility determination precludes success on the claims

21   for asylum, withholding of removal, and CAT relief.     See

22   Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong


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

 2   2005)

 3       For the foregoing reasons, the petition for review is

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

 5   removal that the Court previously granted in this petition

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

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

 8   oral argument in this petition is DENIED in accordance with

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

10   Circuit Local Rule 34.1(b).

11                                 FOR THE COURT:
12                                 Catherine O’Hagan Wolfe, Clerk
13
14




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