    09-4384-ag
    Lakmana v. Holder
                                                                                  BIA
                                                                             Videla, IJ
                                                                          A070 703 930
                          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.


         At a stated term of the United States Court of                 Appeals
    for the Second Circuit, held at the Daniel Patrick                 Moynihan
    United States Courthouse, 500 Pearl Street, in the                 City of
    New York, on the 15 th day of February, two thousand               eleven.

    PRESENT:
             ROBERT A. KATZMANN,
             DEBRA ANN LIVINGSTON,
             DENNY CHIN,
                    Circuit Judges.
    ______________________________________

    PUSHPA KUMARA LAKMANA,
                        Petitioner,
                         v.                                09-4384-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    ______________________________________
    FOR PETITIONER:                    Pushpa Kumara Lakmana, pro se,
                                       Jamaica, N.Y.

    FOR RESPONDENT:                    Tony West, Assistant Attorney
                                       General, Civil Division; Richard M.
                                       Evans, Assistant Director; Jeffrey
                                       J. Bernstein, Attorney, Office of
                                       Immigration Litigation; Civil
                                       Division, U.S. Department of
                                       Justice, Washington, D.C.
    UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

    Pushpa Kumara Lakmana, a native and citizen of Sri

Lanka, seeks review of an October 15, 2009, order of the BIA

reissuing its November 18, 2002, order affirming the May 30,

2001, decision of Immigration Judge (“IJ”) Gabriel C. Videla

denying Lakmana’s application for asylum, withholding of

removal, and relief under the Convention Against Torture

(“CAT”).     In re Lakmana, No. A070 703 930 (B.I.A. Oct. 15,

2009); In re Lakmana, No. A070 703 930 (B.I.A. Nov. 18,

2002), aff’g No. A070 703 930 (Immig. Ct. N.Y. City May 30,

2001).     We assume the parties’ familiarity with the

underlying facts and procedural history of the case.

    Under the circumstances of this case, we review the

IJ’s decision as the final agency determination.     See

8 C.F.R. § 1003.1(e)(4); Shunfu Li v. Mukasey, 529 F.3d 141,

146 (2d Cir. 2008). The applicable standards of review are

well-established.     See Corovic v. Mukasey, 519 F.3d 90, 95

(2d Cir. 2008); see also Salimatou Bah v. Mukasey, 529 F.3d

99, 110 (2d Cir. 2008).


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    Substantial evidence supports the IJ’s adverse

credibility determination.   We will not disturb adverse

credibility determinations when they are based on “specific

examples in the record of inconsistent statements . . .

about matters material to [an applicant’s] claim of

persecution, or on contradictory evidence or inherently

improbable testimony regarding such matters.”   Zhou Yun

Zhang v. INS, 386 F.3d 66, 74 (2d Cir. 2004) (internal

quotation marks omitted), overruled in part on other grounds

by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305

(2d Cir. 2007).   In making the adverse credibility

determination in this case, the IJ found Lakmana not

credible because he: (1) was evasive and non-responsive to

“simple and direct” questions throughout the hearing;

(2) testified that the LTTE came to his mother’s house to

look for him, but did not include that information in his

asylum application; (3) testified inconsistently regarding

the amount of time he lived at his mother’s home; and

(4) stated in his asylum application that LTTE members tried

to kill his wife, but testified that his wife was not harmed

and nothing happened to her on the day the buses were

burned.   We are not “compelled to conclude to the contrary.”


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See Shunfu Li, 529 F.3d at 146; see also Xiu Xia Lin v.

Mukasey, 534 F.3d 162, 166 (2d Cir. 2008) (stating that for

purposes of analyzing a credibility determination, “[a]n

inconsistency and an omission are . . . functionally

equivalent”).

    The record shows that Lakmana was given an opportunity

to explain the inconsistencies, but was evasive and non-

responsive to the questions posed to him and failed to

provide a coherent explanation for the discrepancies the IJ

identified.     Contrary to Lakmana’s assertions, it was not

improper or evidence of bias for the IJ to question him

regarding these discrepancies.      See 8 U.S.C. § 1229a(b)(1)

(stating that the IJ has the authority to interrogate,

examine, and cross-examine the applicant and any witnesses).

Furthermore, because the IJ identified specific examples of

Lakmana’s evasiveness, we defer to his demeanor finding.

See Dong Gao v. B.I.A., 482 F.3d 122, 126-27 (2d Cir. 2007)

(granting “particular deference” in applying the substantial

evidence standard to credibility findings based on

demeanor)(internal quotation marks omitted); Li Hua Lin v.

U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006)

(stating that the Court “can be . . . more confident in


                                4
[its] review of observations about an applicant's demeanor

where . . . they are supported by specific examples of

inconsistent testimony”).

    Moreover, contrary to Lakmana’s claim, even if the

inconsistencies the IJ identified were minor, the IJ was

entitled to rely on their cumulative effect.   See Tu Lin v.

Gonzales, 446 F.3d 395, 402 (2d Cir. 2006) (“[E]ven where an

IJ relies on discrepancies or lacunae that, if taken

separately, concern matters collateral or ancillary to the

claim, . . . the cumulative effect may nevertheless be

deemed consequential by the fact-finder.” (internal

citations and quotation marks omitted)); see also Liang Chen

v. U.S. Att'y Gen., 454 F.3d 103, 106-107 (2d Cir.

2006)(“[A]n IJ need not consider the centrality vel non of

each individual discrepancy or omission” and can instead

“rely upon the cumulative impact of such inconsistencies,

and may conduct an overall evaluation of testimony in light

of its rationality or internal consistency and the manner in

which it hangs together with other evidence.”)(internal

citations and quotation marks omitted). Regardless, the

inconsistencies the IJ relied upon went to the heart of

Lakmana’s claim because they were related to his alleged


                             5
persecution by the LTTE.

    Because Lakmana’s withholding of removal and CAT claims

share the same factual predicate as his asylum claim, the

IJ’s adverse credibility determination precludes any form of

relief.    See Paul v. Gonzales, 444 F.3d 148, 157 (2d Cir.

2006).    Because the adverse credibility determination is

dispositive, we do not reach the agency’s alternate burden

of proof findings.

    For the foregoing reasons, the petition for review is

DENIED.    As we have completed our review, the pending motion

for a stay of removal in this petition is DISMISSED as moot.



                             FOR THE COURT:
                             Catherine O’Hagan Wolfe, Clerk




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