    15-799
    Kumar v. Lynch
                                                                                       BIA
                                                                                Mulligan, IJ
                                                                               A200 819 218

                          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 TO 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 Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the
    19th day of April, two thousand sixteen.

    PRESENT:
             DENNIS JACOBS,
             PETER W. HALL,
             DENNY CHIN,
                  Circuit Judges.
    _____________________________________

    SOREV KUMAR,
             Petitioner,

                     v.                                              15-799
                                                                     NAC

    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                      Garish Sarin, Los Angeles, CA.

    FOR RESPONDENT:                      Benjamin C. Mizer, Principal Deputy
                                         Assistant Attorney General; Holly
                                         M. Smith, Senior Litigation Counsel;
                                         Jane T. Schaffner, Trial Attorney,
                                 Office of Immigration Litigation,
                                 United States 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.

       Petitioner Sorev Kumar, a native and citizen of India,

seeks review of a February 27, 2015, decision of the BIA

affirming a March 12, 2013, decision of an Immigration Judge

(“IJ”) denying Kumar’s application for asylum, withholding of

removal, and relief under the Convention Against Torture

(“CAT”).      In re Sorev Kumar, No. A200 819 218 (B.I.A. Feb. 27,

2015), aff’g No. A200 819 218 (Immig. Ct. N.Y. City Mar. 12,

2013).    We assume the parties’ familiarity with the underlying

facts and procedural history in this case.

       Under the circumstances of this case, we have considered

both    the   IJ’s   and   the   BIA’s   opinions   “for   the   sake   of

completeness.”       Wangchuck v. Dep’t of Homeland Sec., 448 F.3d

524, 528 (2d Cir. 2006).         The applicable standards of review




                                     2
are well established.          See 8 U.S.C. § 1252(b)(4)(B); Yanqin

Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

       Under the REAL ID Act of 2005, the agency may, in light of

“the    totality    of   the     circumstances,”     base   an    adverse

credibility determination on an asylum applicant’s “demeanor,

candor, or responsiveness,” the plausibility of his account,

and inconsistencies in his statements, “without regard to

whether”    those   inconsistencies     go   “to    the   heart   of   the

applicant’s claim.”      8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin

v. Mukasey, 534 F.3d 162, 165 (2d Cir. 2008).                 Under the

“substantial evidence” standard of review, “we defer . . . to

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

the circumstances, it is plain that no reasonable fact-finder

could make such an adverse credibility ruling.”             Xiu Xia Lin,

534 F.3d at 167.

       Here, the adverse credibility determination is sound.

Kumar’s testimony was inconsistent with respect to when and why

he obtained his passport.         He testified that he applied for a

passport because he feared for his life after being beaten by

Congress Party members in April 2006.              When the Government

                                    3
noted that Kumar’s passport was issued in February 2006, Kumar

explained that he “had already applied for the passport, and

afterwards” submitted a “second application to expedite the

process.”   The Government countered: the expedited application

must have been submitted before April because the passport was

issued in February.    Kumar then explained that Congress Party

members had been delivering threats at his house, and those

drove him to apply for a passport.      The Government countered:

Kumar did not join the opposition party until March 2006, a month

after the passport was issued.       Kumar then explained that his

family had applied for the passport on his behalf without

consulting him, and that he did not remember this earlier.      A

reasonable adjudicator would not be compelled to credit this

explanation.     Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.

2005).

    The IJ found that Kumar’s demeanor was questionable during

this exchange.    “[T]he IJ has the unique advantage among all

officials involved in the process of having heard directly from

the applicant,” and so we generally defer to demeanor findings.

Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir. 2004), overruled

                                 4
on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494

F.3d 296 (2d Cir. 2007).            That is particularly so if the

demeanor   finding    is     “supported    by   specific   examples     of

inconsistent testimony.”        Li Hua Lin v. U.S. Dep’t of Justice,

453 F.3d 99, 109 (2d Cir. 2006).           Here, the demeanor finding

was supported by Kumar’s inconsistent testimony about his

passport: the IJ observed that when the Government confronted

Kumar about the date of his passport, Kumar’s “demeanor changed

noticeability.      He looked quite anxious and dejected.”

    In his brief to this Court, Kumar asserts that the IJ

overlooked   that    Kumar    had   to    testify   through    a   Punjabi

interpreter about events that occurred seven years earlier.             He

attributes the inconsistencies regarding his passport to “the

normal limits of human understanding and memory.”              Kumar did

not testify to that effect at his hearing, and “an attorney’s

unsworn statements in a brief are not evidence.”              Kulhawik v.

Holder, 571 F.3d 296, 298 (2d Cir. 2009).           Regardless, even if

Kumar had offered the explanation, the agency would not have

been compelled to credit it.         Majidi, 430 F.3d at 80.




                                     5
     The IJ also found that Kumar’s testimony was implausible

(albeit without using that precise term).   “The point at which

a finding that testimony is implausible ceases to be sustainable

as   reasonable   and,   instead,   is   justifiably    labeled

‘speculation,’ in the absence of an IJ’s adequate explanation,

cannot be located with precision,” but as a general matter, such

a finding should be upheld unless we are “left with the definite

and firm conviction that a mistake has been committed.”     Ming

Xia Chen v. BIA, 435 F.3d 141, 145 (2d Cir. 2006) (internal

citation omitted).    Here, the agency committed no mistake

because the IJ’s finding was “tethered to record evidence.”

Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2007).   Kumar

testified that if returned to India, he would continue to “speak

out” politically; he admitted, however, that he is in no way

politically active in the United States.     Kumar’s political

activities were limited to a two-month period (March and April

2006) and did not include voting.    He said he was unaware of

the 2009 elections in India explaining that he “didn’t pay

attention.”   Given this testimony and Kumar’s assertion that




                               6
he will be targeted based on his political beliefs, the agency

was justified in finding his claim implausible.

    The agency also cited inconsistencies between Kumar’s

testimony and his party secretary’s letter.    Kumar testified

that between March and April 2006, he attended two or three

rallies to attract new members to the party.   By contrast, the

party secretary’s letter stated that Kumar “took part in many

rallies, protest march and demonstration [sic]. . . against

police brutality, for promoting our agenda for achievement of

Khalistan.”   When pressed about the significance of Khalistan,

moreover, Kumar foundered.    He understood Khalistan to be a

place where Muslims, Hindus, Sikhs, and Christians can live

together under the leadership of India, and he had never heard

of the idea that Khalistan would become an independent nation.

But his party secretary’s letter spoke of the “formation of

Khalistan,” and Kumar’s own documentary evidence included a

Wikipedia entry about the secessionist movement to create a

separate Sikh state called Khalistan.   This disconnect further

supported the agency’s adverse credibility determination.




                               7
    Because the only evidence of a threat to Kumar depended on

his credibility, the agency’s finding that he was not credible

necessarily   precludes   success   on   his   claims   for   asylum,

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

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

    Kumar argues that the credibility determination did not

defeat his CAT claim.     He points to the State Department’s

country reports on human rights in India, which, in his view,

indicate that it is “a very corrupt society and country where

political parties like the Congress party control the Indian

police and commit major human rights violations.”

    The agency “may not deny an alien’s CAT claim solely on the

basis of its determination that the applicant’s testimony is

not credible.”    Ramsameachire v. Ashcroft, 357 F.3d 169, 184

(2d Cir. 2004).   But that is true only if the alien’s CAT claims

are “analytically separate from [his] asylum claims.”         Xue Hong

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

In a case like this one, however, in which the fear of torture

is based on past activity that has been found not to be credible,




                                8
the adverse credibility determination is dispositive.   Paul v.

Gonzales, 444 F.3d at 156-57.

    For the foregoing reasons, the petition for review is

DENIED.

                            FOR THE COURT:
                            Catherine O=Hagan Wolfe, Clerk




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