         14-136
         Gurung v. Holder
                                                                                       BIA
                                                                                Mulligan, IJ
                                                                               A089 915 659
                                 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 16th day of March, two thousand fifteen.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                DENNY CHIN,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       HUM KUMARI GURUNG,
14                Petitioner,
15
16                          v.                                  14-136
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                  Khagendra Gharti-Chhetry, New York,
24                                        New York.
25
26       FOR RESPONDENT:                  Joyce R. Branda, Acting Assistant
27                                        Attorney General; Leslie McKay,
28                                        Assistant Director; Lori B. Warlick,
29                                        Trial Attorney, Office of
 1                          Immigration Litigation, United
 2                          States Department of Justice,
 3                          Washington D.C.
 4
 5       UPON DUE CONSIDERATION of this petition for review of a

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

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

 8   is DENIED.

 9       Petitioner Hum Kumari Gurung, a native and citizen of

10   Nepal, seeks review of a December 19, 2013, decision of the

11   BIA, affirming the September 7, 2011, decision of an

12   Immigration Judge (“IJ”), denying her application for

13   asylum, withholding of removal, and relief under the

14   Convention Against Torture (“CAT”).     In re Hum Kumari

15   Gurung, No. A089 915 659 (B.I.A. Dec. 19, 2013), aff’g No.

16   A089 915 659 (Immig. Ct. N.Y. City Sep. 7, 2011).    We assume

17   the parties’ familiarity with the underlying facts and

18   procedural history in this case.

19       Under the circumstances of this case, we have reviewed

20   both the BIA’s and IJ’s opinions.     See Zaman v. Mukasey, 514

21   F.3d 233, 237 (2d Cir. 2008)(per curiam).    The applicable

22   standards of review are well established.     See 8 U.S.C.

23   § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

24   (2d Cir. 2009).


                                  2
 1       For asylum applications like Gurung’s, governed by the

 2   REAL ID Act, the agency may, “[c]onsidering the totality of

 3   the circumstances,” base a credibility finding on an

 4   applicant’s “demeanor, candor, or responsiveness” as well as

 5   inconsistencies in an applicant’s statements and other

 6   record evidence “without regard to whether” they go “to the

 7   heart of the applicant’s claim.”    8 U.S.C.

 8   § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

 9   163-64 (2d Cir. 2008) (per curiam).    “We defer therefore to

10   an IJ’s credibility determination unless, from the totality

11   of the circumstances, it is plain that no reasonable

12   fact-finder could make such an adverse credibility ruling.”

13   Xiu Xia Lin, 534 F.3d at 167.

14       We conclude that the agency’s adverse credibility

15   determination is supported by substantial evidence.       The IJ

16   reasonably relied on Gurung’s omission from her asylum

17   application of an alleged physical assault.    Gurung’s

18   application states that Maoists came to her office, stole

19   money, and threatened her, but she testified that they also

20   threw her to the ground and damaged her teeth.    This assault

21   is central to Gurung’s claim of past persecution, and the IJ

22   reasonably based his adverse credibility determination on


                                     3
 1   Gurung’s failure to include it in her written statement.

 2   Xian Tuan Ye v. DHS, 446 F.3d 289, 295 (2d Cir. 2006) (per

 3   curiam); Xiu Xia Lin, 534 F.3d at 167.

 4       Gurung argues that her explanation for this

 5   omission—that she did not go to the doctor and therefore had

 6   no proof of her injuries–should have been credited.

 7   However, the IJ was not compelled to credit the explanation,

 8   particularly after Gurung testified that she obtained

 9   treatment in the United States for the injuries to her

10   teeth.   Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005)

11       The IJ also reasonably relied on Gurung’s inability to

12   testify to the details of the meetings she helped organize

13   for the Rastriya Parjatantra Party (“RPP”) at her hotel.

14   Gurung testified that she regularly attended and

15   participated in RPP meetings at her hotel and that she

16   organized and spoke out on behalf of the party.    However,

17   when the IJ asked her for details, she gave vague answers

18   that did not respond to the IJ’s concerns.   The IJ

19   reasonably relied on her inability to respond to these

20   questions in concluding that she lacked credibility.     See 8

21   U.S.C. § 1158(b)(1)(B)(iii) (providing that applicant’s lack

22   of responsiveness can support an adverse credibility

23   determination).

                                   4
 1       The IJ’s adverse credibility determination is further

 2   supported by his demeanor finding.     The IJ noted multiple

 3   instances in which Gurung displayed contrived emotions,

 4   looking to the judge as she held her face in order to gauge

 5   his reaction, and points at which she paused between answers

 6   and seemed increasingly nervous.     We typically afford

 7   particular deference to demeanor findings.        Jin Chen v. U.S.

 8   Dep’t of Justice, 426 F.3d 104, 113 (2d Cir. 2005); see also

 9   Majidi, 430 F.3d at 81 n.1.   That deference is particularly

10   appropriate here, as a cold transcript cannot reflect

11   Gurung’s emotional tone, body language, or the pace of her

12   answers.   Only the IJ can observe these details, and we

13   defer to his evaluation of them.     Jin Chen, 426 F.3d at 113.

14       Considering the totality of the circumstances,

15   including Gurung’s omission of her physical attack, her

16   inability to testify to the details of the RPP meetings she

17   helped plan and attended, and her poor demeanor throughout

18   the hearing, the IJ’s adverse credibility determination is

19   supported by substantial evidence.     8 U.S.C.

20   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.

21   Accordingly, because all of Gurung’s claims rely on her

22   credibility, the agency did not err in denying asylum,

23   withholding of removal, and CAT relief because the claims

                                   5
 1   were all based on the same factual predicate.    Paul v.

 2   Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

 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
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