    11-367-ag                                                                    BIA
    Babar v. Holder                                                        Montante, IJ
                                                                          A088 187 868
                                                                          A088 187 869
                                                                          A088 187 870
                                                                          A088 187 871
                                                                          A088 187 872
                                                                          A088 187 873



                       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.

         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 17th day of June, two thousand thirteen.

    PRESENT:
             ROSEMARY S. POOLER,
             ROBERT D. SACK,
             RICHARD C. WESLEY,
                           Circuit Judges.
    ________________________________
    MOHAMMED BABAR, SHAZIA BABAR BANO,
    FARAH RANI BABAR, OWAIS BABAR,
    ALI BABAR, HUSSAIN BABAR,
             Petitioners,

                      v.                                   11-367
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.

    ________________________________
FOR PETITIONERS:       E. Dennis Muchnicki, Dublin, Ohio.

FOR RESPONDENT:        Tony West, Assistant Attorney
                       General; Jennifer P. Levings, Senior
                       Litigation Counsel; Jennifer R.
                       Khouri, 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.

    Mohammed Babar (“Babar”), Shazia Babar Bano, and their

children Farah Rani Babar, Owais Babar, and Ali Babar,

natives and citizens of Pakistan, and their child Hussain

Babar, a native and citizen of Canada, seek review of a

January 6, 2011, decision of the BIA affirming the April 6,

2009, decision of Immigration Judge (“IJ”) Philip J.

Montante, Jr., which denied Mr. Babar’s application for

asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”).1   In re Mohammed Babar

et al., Nos. A088 187 868/869/870/871/872/873 (B.I.A. Jan.

6, 2011), aff’g Nos. A088 187 868/869/870/871/872/873



       1
         Babar’s asylum application included his wife and
  the four children as derivative applicants, as permitted
  by 8 U.S.C. § 1158(b)(3)(A).
                             2
(Immig. Ct. Buffalo Apr. 6, 2009).       We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

    Under the circumstances of this case, we have reviewed

the IJ’s decision as supplemented by the BIA.       See Yan Chen

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

applicable standards of review are well-established.       See 8

U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562

F.3d 510, 513 (2d Cir. 2009).       For asylum applications such

as Babar’s, governed by the amendments made to the

Immigration and Nationality Act by the REAL ID Act of 2005,

the agency may, considering the totality of the

circumstances, base a credibility finding on inconsistencies

or omissions in the applicant’s statements, without regard

to whether the inconsistencies or omissions go “to the heart

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

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

167 (2d Cir. 2008).

    Here, the agency reasonably relied on internally

contradictory testimony – Babar’s initial testimony that his

asylum claims in the United States and Canada were the same,

and later testimony that his false Canadian asylum


                                3
application was different – to find him incredible.   See

id.; see also Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.

2007).   Moreover, in his application, Babar, a Shia Muslim,

stated that he feared returning to Pakistan because his

wife’s family would surrender him to Sipah Sahaba, a Sunni

Muslim terrorist group, and take away his children.   While

the IJ’s decision mischaracterized Babar’s testimony by

incorrectly stating that he did not mention Sipah Sahaba

during his hearing, this error was harmless because the BIA

reasonably concluded that Babar’s failure to testify about

his wife’s family’s threats to turn him over to Sipah Sahaba

and take away his children were material omissions

negatively impacting his credibility.   See U.S.C.

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

contends that the IJ failed to provide him an opportunity to

explain his inconsistent testimony, but the IJ explicitly

called the inconsistencies to his attention, and reasonably

declined to credit his explanation that the discrepancies

resulted from inadequate preparation time, especially where

the omissions were from the testimony, not the application.

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




                              4
    Babar also argues that the IJ’s and BIA’s alternative

burden of proof findings were legally erroneous in “not

considering” and in “not admitting” corroborating evidence

consisting of letters from family and neighbors in Pakistan.

Indeed, the IJ stated during the hearing that such evidence

would not be received.   However, at the end of the hearing,

when announcing his decision, the IJ stated that he “weighed

and considered the totality of the testimonial and

documentary evidence or record in the aggregate,” and that

the evidence at issue was “received into evidence.” This

declaration during the decision is fatal to Babar’s claim

that the IJ failed to admit the evidence. The IJ’s ultimate

determination that he “weighed and considered” the evidence

does not compellingly suggest that he failed to consider the

evidence.   Xiao Ji Chen v. Mukasey, 471 F.3d 315, 337 n. 17

(2d Cir. 2006).   While we acknowledge the IJ’s lack of

clarity in his decision, see Dong Zhong Zheng v. Mukasey,

552 F.3d 277, 285 (2d Cir. 2009), even if the agency erred

by failing to address each of Babar’s evidentiary

submissions, see Zhi Yun Gao v. Mukasey, 508 F.3d 86, 87 (2d

Cir. 2007), remand would be futile because we can

confidently “predict that the agency would reach the same

decision absent the errors that were made.”   Shunfu Li v.
                              5
Mukasey, 529 F.3d 141, 150 (2d Cir. 2008) (quoting Xiao Ji

Chen, 471 F.3d at 339); see also Cao He Lin v. U.S. Dep’t of

Justice, 428 F.3d 391, 401-02 (2d Cir. 2005).

    As the only evidence of a threat to Babar’s life or

freedom depended upon his credibility, the adverse

credibility determination in this case necessarily precludes

success on the claims for asylum, withholding of removal,

and CAT relief.   See Paul v. Gonzales, 444 F.3d 148, 156 (2d

Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

520, 523 (2d Cir. 2005).

    For the foregoing reasons, the petition for review is

DENIED.

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




                              6
