         13-4524
         Dorjee v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A089 198 359
                              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 10th day of April, two thousand fifteen.
 5
 6       PRESENT:
 7                          REENA RAGGI,
 8                          DENNY CHIN,
 9                          RAYMOND J. LOHIER, JR.,
10                               Circuit Judges.
11
12       _______________________________________
13
14       URGEN DORJEE, AKA URGEN TENZIN,
15                Petitioner,
16
17                          v.                                  13-4524
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:                 Jason A. Nielson, Mungoven &
25                                       Associates, P.C., New York, New
26                                       York.
27
28       FOR RESPONDENT:                 Stuart F. Delery, Assistant Attorney
29                                       General; Luis E. Perez, Assistant
     1                             Director; W. Daniel Shieh, Trial
     2                             Attorney, Office of Immigration
     3                             Litigation, U.S. Department of
     4                             Justice, Washington D.C.
     5
     6       UPON DUE CONSIDERATION of this petition for review of a

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

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

     9   is DENIED.

10           Urgen Dorjee, a native of Tibet and citizen of China,

11       seeks review of a November 4, 2013, decision of the BIA,

12       affirming the June 4, 2012, decision of an Immigration Judge

13       (“IJ”) denying his application for asylum, withholding of

14       removal, and relief under the Convention Against Torture

15       (“CAT”).     In re Urgen Dorjee, No. A089 198 359 (B.I.A. Nov.

16       4, 2013), aff’g No. A089 198 359 (Immig. Ct. N.Y.C. June 4,

17       2012).     We assume the parties’ familiarity with the

18       underlying facts and procedural history in this case.

19           Under the circumstances of this case, we have reviewed

20       the IJ’s decision as modified by the BIA.     See Xue Hong Yang

21       v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).

22       The applicable standards of review are well established.

23       See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534

24       F.3d 162, 165-66 (2d Cir. 2008).     The agency may,

25       “[c]onsidering the totality of the circumstances,” base a

26       credibility finding on an asylum applicant’s demeanor, and

                                         2
 1   inconsistencies in his statements and other record evidence

 2   “without regard to whether” they go “to the heart of the

 3   applicant’s claim.”    8 U.S.C. § 1158(b)(1)(B)(iii); see also

 4   Xiu Xia Lin v. Mukasey, 534 F.3d at 163-64.    Substantial

 5   evidence supports the agency’s determination that Dorjee was

 6   not credible.

 7       The IJ found that Dorjee was not credible in part

 8   because his testimony describing the anti-Chinese posters

 9   that led to his alleged persecution differed from the

10   description he provided in his application.    Dorjee

11   testified that the posters contained no photographs;

12   instead, the posters contained only words and phrases,

13   handwritten by him.    In his application, however, he alleged

14   that he was persecuted for distributing pictures of the

15   Dalai Lama and Tibetan flag.    The record supports this

16   inconsistency and calls into question the single instance of

17   persecution he alleges: his arrest, beating, and detention

18   for distributing anti-Chinese posters.    See Xian Tuan Ye v.

19   Dep’t of Homeland Sec., 446 F.3d 289, 294-95 (2d Cir. 2006).

20   Dorjee explained that the erroneous description of the

21   posters was the fault of the person who prepared the asylum

22   application.    While this explanation may be plausible, it is

23   not one that the IJ was compelled to accept.    See Majidi v.


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

 2       The demeanor finding provides additional support for

 3   the credibility determination.    The record supports the IJ’s

 4   conclusion that Dorjee’s testimony was, at points, vague and

 5   nonresponsive.   “We give particular deference to credibility

 6   determinations . . . based on . . . demeanor, in recognition

 7   of the fact that the IJ’s ability to observe the witness’s

 8   demeanor places her in the best position to evaluate whether

 9   apparent problems in the witness’s testimony suggest a lack

10   of credibility or, rather, can be attributed to an innocent

11   cause such as difficulty understanding the question.”     Jin

12   Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d Cir.

13   2005).   In his brief, Dorjee offers an alternative view of

14   his demeanor; rather than evasive and nonresponsive, he

15   argues he was “contemplative” and points to his use of a

16   translator.   He later argues that “any perceived

17   evasiveness” stemmed from the fact that he “is a nomad with

18   no formal education.”   These explanations do not compel us

19   to find error in the demeanor finding.    Dorjee’s education

20   or nerves provide inadequate explanation, particularly as

21   the questions asked related to his personal experiences

22   which were set forth in his written application.    See Majidi

23   v. Gonzales, 430 F.3d at 80-81.


                                   4
 1       Given the inconsistency related to the sole allegation

 2   of persecution, and the demeanor finding to which we defer,

 3   substantial evidence supports the agency’s adverse

 4   credibility determination.    See Xiu Xia Lin v. Mukasey, 534

 5   F.3d at 167.   Because the only evidence of a threat to

 6   Dorjee’s life or freedom relied on his credibility, the

 7   adverse credibility determination is dispositive of asylum,

 8   withholding of removal, and CAT relief.    See Paul v.

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

10       For the foregoing reasons, the petition for review is

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

12   removal that the Court previously granted in this petition

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

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

15   oral argument in this petition is DENIED in accordance with

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

17   Circuit Local Rule 34.1(b).

18

19                      FOR THE COURT:
20                      Catherine O’Hagan Wolfe, Clerk of Court
21
22




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