         10-5048-ag
         Stolfa v. Holder
                                                                                       BIA
                                                                                    Reid, IJ
                                                                               A089 010 066


                             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 16th day of August, two thousand twelve.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                PIERRE N. LEVAL,
10                GERARD E. LYNCH,
11                     Circuit Judges.
12       _____________________________________
13
14       JAROSLAV STOLFA,
15                Petitioner,
16
17                          v.                                  10-5048-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:               Jaroslav Stolfa, pro se, Batavia,
25                                     New York.
26
27       FOR RESPONDENT:               Tony West, Assistant Attorney
28                                     General; John Hogan, Senior
29                                     Litigation Counsel; Ashley Y.
30                                     Martin, Trial Attorney, Office of
31                                     Immigration Litigation, U.S.
32                                     Department of Justice, Washington
33                                     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 DISMISSED in part and DENIED in part.

 5        Jaroslav Stolfa, a native of Czechoslovakia and citizen

 6   of the Czech Republic, seeks review of a November 30, 2010,

 7   decision of the BIA affirming the August 4, 2010, decision

 8   of Immigration Judge (“IJ”) John B. Reid, denying his

 9   application for asylum, withholding of removal, and relief

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

11   Jaroslav Stolfa, No. A089 010 066 (B.I.A. Nov. 30, 2010),

12   aff’g No. A089 010 066 (Immig. Ct. Batavia Aug. 4, 2010).

13   We assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15        Under the circumstances of this case, we have reviewed

16   the IJ’s decision as modified and supplemented by the BIA.

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

18   The applicable standards of review are well-established.

19   See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562

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

21   A.   Asylum

22        We lack jurisdiction to review the agency’s decision

23   insofar as it pretermitted Stolfa’s asylum application as

24   untimely filed.   See 8 U.S.C. § 1158(a)(3); Xio Ji Chen v.

                                     2
 1   United States Dep't of Justice, 471 F.3d 315, 323-24 (2d

 2   Cir. 2006) (holding a court may review discretionary

 3   decisions of the IJ only if they involve constitutional

 4   claims or questions of law); see also Joaquin-Porras v.

 5   Gonzales, 435 F.3d 172, 180 (2d Cir. 2006) ("[T]he IJ looked

 6   to the facts and circumstances as presented in this case and

 7   concluded that [Petitioner] did not qualify for an exception

 8   [to the timeliness requirement].     We therefore conclude that

 9   we cannot disturb the IJ's conclusion . . . ." (citation and

10   internal quotation marks omitted)).

11   B.   Withholding of Removal

12        The agency denied withholding of removal based on an

13   adverse credibility determination.     For the reasons that

14   follow, this determination is supported by substantial

15   evidence.   We therefore need not address the agency's

16   alternative finding that Stolfa failed to establish

17   persecution on account of a protected ground.

18        For applications governed by the REAL ID Act, the

19   agency may, considering the totality of the circumstances,

20   base a credibility finding on an asylum applicant’s

21   demeanor, the plausibility of his account, and inconsistent

22   statements, without regard as to whether they go “to the

23   heart of [his] claim.”   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu

24   Xia Lin v. Mukasey, 534 F.3d 162, 165 (2d Cir. 2008).     We

                                   3
 1   afford "particular deference" to an IJ's credibility

 2   finding, especially when it is based on an assessment of the

 3   applicant's demeanor.   See Jin Chen v. United States Dep't

 4   of Justice, 426 F.3d 104, 113 (2d Cir. 2005).

 5       In assessing Stolfa's demeanor, the agency identified

 6   multiple instances of evasive testimony.   See Majidi v.

 7   Gonzales, 430 F.3d 77, 82 n.1 (2d Cir. 2005) (determining

 8   petitioner's evasive manner bolstered IJ's adverse

 9   credibility determination).   When asked about his work in

10   the United States from 1997-2004, Stolfa replied: "The job

11   in the United States and this and that and that, there were

12   lots of my friends leaving for the United States . . . .

13   They were doing job nobody wanted to do.   They make money.

14   They get back to Czech Republic."   It took prolonged

15   questioning to establish that Stolfa had worked connecting

16   others to jobs.   When asked about his employment from 2009-

17   2010, Stolfa reverted to speaking about his work from 1997-

18   2004.   Eventually, the IJ was able to determine that Stolfa

19   had worked, illegally, for a subcontractor cleaning floors.

20   The IJ did not err in concluding that Stolfa purposely

21   attempted to misdirect the Court, especially because many of

22   Stolfa's other answers, including those regarding his work

23   in the Czech Republic and the acquisition of his South

24   Carolina driver's license, were relatively straightforward.


                                   4
 1        The agency also found key parts of Stolfa's claim

 2   implausible: that Stolfa, who testified that he was

 3   generally apolitical, nevertheless gave an impromptu speech

 4   at a political gathering of skinheads; that in the following

 5   months, skinheads recognized Stolfa in other locations and

 6   beat him; and that skinheads, without knowledge of Stolfa's

 7   identity, obtained his cell phone number and threatened him.

 8   The agency also questioned why Stolfa did not report the

 9   attacks to the police.   Suggesting an alternative

10   explanation for these incidents, the IJ noted that Stolfa's

11   I-213 form reported that he owed money to organized crime in

12   the Czech Republic (a claim Stolfa denies making).

13   C.   CAT Relief

14        Because Stolfa failed to raise his CAT claim in his

15   brief to this Court, we deem that claim abandoned.    See

16   Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir.

17   2005).   Moreover, the CAT claim rests on the same factual

18   predicate as the withholding claim.   See Paul v. Gonzales,

19   444 F.3d 148, 157 (2d Cir. 2006) ("[A] petition for CAT

20   relief may fail because of an adverse credibility ruling

21   rendered in the asylum context where the factual basis for

22   the alien's CAT claim was the same as that rejected in his

23   asylum petition.").

24

                                   5
 1   D.   Additional Arguments

 2        There is no support in the record for Stolfa's

 3   contention that the IJ was biased against him, or his

 4   assertion that the government's purportedly erroneous

 5   classification of him as a criminal deprived him of a full

 6   and fair opportunity to present his claims.   See Ali v.

 7   Mukasey, 529 F.3d 478, 490 (2d Cir. 2008) (holding that due

 8   process requires that an applicant "be afforded the

 9   opportunity to be heard at a meaningful time and in a

10   meaningful manner by an impartial and disinterested

11   tribunal" (citation and internal quotation marks omitted)).

12        We construe Stolfa’s challenge to his immigration

13   detention as a bail motion.   See Bertin v. United States,

14   478 F.3d 489, 491 (2d Cir. 2007); Elkimya v. Dep’t of

15   Homeland Security, 484 F.3d 151, 153-54 (2d Cir. 2007).

16   However, he has failed to demonstrate that “‘extraordinary

17   circumstances exist[] that make the grant of bail necessary

18   to make the [petition for review] remedy effective.’”

19   Elkimya, 484 F.3d at 154 (alterations in original)(quoting

20   Mapp v. Reno, 241 F.3d 221, 230 (2d Cir. 2001)).   Stolfa may

21   nevertheless file an application for custody or bond

22   redetermination with the IJ having jurisdiction over his

23   place of detention.   See 8 C.F.R. § 1003.19(a)-(d).

24

                                   6
 1       For the foregoing reasons, the petition for review is

 2   DISMISSED in part and DENIED in part.     As we have completed

 3   our review, the pending motion for a stay of removal in this

 4   petition is DISMISSED as moot.     Any pending request for oral

 5   argument in this petition is DENIED in accordance with

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

 7   Circuit Local Rule 34.1(b).

 8                                 FOR THE COURT:
 9                                 Catherine O’Hagan Wolfe, Clerk
10
11




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