         10-963-ag (L)
         Kaur v. Holder
                                                                                       BIA
                                                                                  Videla, IJ
                                                                               A077 998 037
                           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 27th day of March, two thousand twelve.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                ROBERT D. SACK,
10                REENA RAGGI,
11                     Circuit Judges.
12       _______________________________________
13
14       GURSHARN KAUR,
15                Petitioner,
16
17                        v.                                    10-963-ag (L);
18                                                              10-4036-ag (Con)
19                                                              NAC
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,
22                Respondent.
23       _______________________________________
24
25       FOR PETITIONER:               Gursharn Kaur, pro se, Syosset, NY.
26
27       FOR RESPONDENT:               Tony West, Assistant Attorney
28                                     General; David V. Bernal, Assistant
29                                     Director; Lauren E. Fascett, Trial
30                                     Attorney, Office of Immigration
31                                     Litigation, United States Department
32                                     of Justice, Washington, D.C.
 1        UPON DUE CONSIDERATION of these petitions for review of

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

 3   ORDERED, ADJUDGED, AND DECREED, that the petitions for

 4   review are DENIED.

 5        Gursharn Kaur, a native and citizen of India, seeks

 6   review of a February 25, 2010, order of the BIA affirming

 7   the March 20, 2008, decision of Immigration Judge (“IJ”)

 8   Gabriel C. Videla, which denied her application for asylum,

 9   withholding of removal, and relief under the Convention

10   Against Torture (“CAT”); and review of a September 20, 2010,

11   decision of the BIA denying her motion to reopen.     In re

12   Kaur, No. A077 998 037 (B.I.A. Feb. 25, 2010), aff’g No.

13   A077 998 037 (Immig. Ct. N.Y. City Mar. 20, 2008); In re

14   Kaur, No. A077 998 037 (B.I.A. Sept. 20, 2010).     We assume

15   the parties’ familiarity with the underlying facts and

16   procedural history in this case.

17   I.   Adverse Credibility Determination

18        Under the circumstances of this case, we have reviewed

19   the decision of the IJ as supplemented by the BIA.     See Yan

20   Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).     The

21   applicable standards of review are well-established.     See

22   Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008);

23   Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d Cir. 2007).


                                   2
 1       The agency’s adverse credibility finding was based on

 2   an accumulation of factors, including the inconsistencies

 3   [i] between Kaur’s testimony and her asylum application as

 4   to what occurred on the occasions she allegedly interacted

 5   with Indian police, and [ii] among her airport interview,

 6   asylum application, and testimony as to whether the Indian

 7   government had caused the disappearance of her siblings due

 8   to their support of the Khalistan movement, or indeed as to

 9   whether or not she had any siblings.     The cumulative effect

10   of these numerous inconsistencies is substantial when

11   measured against the record as a whole.     See Tu Lin v.

12   Gonzales, 446 F.3d 395, 402 (2d Cir. 2006).

13       Given the inconsistencies and lack of corroboration,

14   the agency’s adverse credibility finding is supported by

15   substantial evidence.   See Secaida-Rosales v. INS, 331 F.3d

16   297, 308-09 (2d Cir. 2003).   As the only bases for relief

17   depended upon Kaur’s credibility, the adverse credibility

18   determination in this case necessarily precludes asylum,

19   withholding of removal, or CAT relief.     See Paul v.

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

21   U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).

22



                                   3
 1   II.   Motion to Reopen

 2         The BIA did not abuse its discretion by denying Kaur’s

 3   timely motion to reopen.      See Ali v. Gonzales, 448 F.3d 515,

 4   517 (2d Cir. 2006).      Kaur moved the BIA to reopen her

 5   proceedings on the ground that her application for

 6   adjustment of status was pending before United States

 7   Citizenship and Immigration Services (“USCIS”).       As Kaur

 8   acknowledged, because she is an arriving alien, USCIS has

 9   the sole authority to adjudicate her adjustment application.

10   See Sheng Gao Ni v. BIA, 520 F.3d 125, 129 (2d Cir. 2008).

11   Although an outstanding removal order does not bar

12   adjustment for an arriving alien, see Matter of Yauri, 25 I.

13   & N. Dec. 103, 107 (B.I.A. 2009), execution of that order

14   does bar adjustment, see 8 C.F.R. § 245.2(a)(4)(ii)(A);

15   Sheng Gao Ni, 520 F.3d at 131.       Accordingly, as Kaur has

16   acknowledged, a motion to reopen with the BIA in this

17   situation is simply a means of requesting a stay of removal.

18   See Yauri, 25 I. & N. Dec. at 108-09.

19         Consequently, the BIA reasonably construed Kaur’s

20   motion as one to stay the execution of her removal order,

21   and then gave a rational explanation as to why it declined

22   to grant the request, that: (1) the only relief it could


                                      4
 1   provide to Kaur would be a stay of removal; (2) Kaur had not

 2   demonstrated or asserted that the Department of Homeland

 3   Security (“DHS”) was seeking to effectuate her removal while

 4   her application was pending; and (3) if DHS should seek to

 5   effectuate her removal, she could address a request for a

 6   stay of removal to DHS.    Because the BIA provided this

 7   explanation, which was responsive to the relief Kaur sought,

 8   it did not abuse its discretion by denying Kaur’s motion to

 9   reopen.*   Cf. Sheng Gao Ni, 520 F.3d at 129-30.

10       For the foregoing reasons, the petitions for review are

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

12   removal that the Court previously granted in these petitions

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

14   these petitions is DISMISSED as moot. Any pending request

15   for oral argument in these petitions is DENIED in accordance

16   with Federal Rule of Appellate Procedure 34(a)(2), and

17   Second Circuit Local Rule 34.1(b).

18                                FOR THE COURT:
19                                Catherine O’Hagan Wolfe, Clerk
20
21
22
23

            *
            Kaur asserts that the BIA’s denial of her motion to
       reopen was contrary to this Court’s decision in Freire v.
       Holder, 647 F.3d 67 (2d Cir. 2011). However, the
       petitioner in Freire was seeking continuance of an
       ongoing proceeding, not reopening after a final order of
       removal had been entered. 647 F.3d at 70.
                                  5
