         10-3450-ag
         Kumar v. Holder
                                                                                       BIA
                                                                                    Burr, IJ
                                                                               A074 849 052
                            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 18th day of April, two thousand twelve.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                RAYMOND J. LOHIER, JR.,
10                SUSAN L. CARNEY,
11                     Circuit Judges.
12       _______________________________________
13
14       BALRAM KUMAR,
15                Petitioner,
16
17                         v.                                   10-3450-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:               Theodore N. Cox, New York, New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Melissa Neiman-Kelting,
28                                     Senior Litigation Counsel;
29                                     Christopher Buchanan, Trial
30                                     Attorney, Office of Immigration
31                                     Litigation, Washington D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   is DISMISSED in part and DENIED in part.

 5       Petitioner Balram Kumar, a native and citizen of India,

 6   seeks review of the August 16, 2010, decision of the BIA:

 7   (1) affirming an October 23, 2008, decision of an

 8   Immigration Judge (“IJ”) pretermitting his application for

 9   asylum as untimely and denying his applications for

10   withholding of removal and CAT relief; and (2) denying his

11   motion to remand.    In re Balram Kumar, No. A074 849 052

12   (B.I.A. Aug. 16, 2010), aff’g No. A074 849 052 (Immig. Ct.

13   N.Y. City Oct. 23, 2008).    We assume the parties’

14   familiarity with the underlying facts and procedural history

15   in this case.

16       As an initial matter, we lack jurisdiction to review

17   the agency’s pretermission of Kumar’s untimely asylum

18   application.    See 8 U.S.C. § 1158(a)(3).   Although we retain

19   jurisdiction to review constitutional claims and “questions

20   of law,” 8 U.S.C. § 1252(a)(2)(D), Kumar’s only contention

21   is that the agency mischaracterized his explanation for the

22   untimely filing of his application.    A petitioner cannot


                                    2
 1   “secure review by using the rhetoric of a ‘constitutional

 2   claim’ or ‘question of law’ to disguise what is essentially

 3   a quarrel about fact-finding or the exercise of

 4   discretion”). Xiao Ji Chen v. U.S. Dep’t of Justice, 471

 5   F.3d 315, 330 (2d Cir. 2006).       Accordingly, we dismiss the

 6   petition for review to the extent it challenges the agency’s

 7   pretermission of his asylum application.       See 8 U.S.C.

 8   § 1158(a)(3).   Nevertheless, we may review the agency’s

 9   denial of withholding of removal and CAT relief.

10       We consider both the IJ’s and the BIA’s opinions “for

11   the sake of completeness.”     Zaman v. Mukasey, 514 F.3d 233,

12   237 (2d Cir. 2008).    The applicable standards of review are

13   well established.     See 8 U.S.C. § 1252(b)(4)(B); see also

14   Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).

15   For applications, such as this one, governed by the REAL ID

16   Act, the agency may, “[c]onsidering the totality of the

17   circumstances, . . . base a credibility determination on . .

18   . the inherent plausibility of the applicant’s or witness’s

19   account, the consistency between the applicant’s or

20   witness’s written and oral statements (whenever made and

21   whether or not under oath, and considering the circumstances

22   under which the statements were made), . . . without regard


                                     3
 1   to whether an inconsistency . . . goes to the heart of the

 2   applicant’s claim.”    8 U.S.C. § 1158(b)(1)(B)(iii).

 3          Substantial evidence supports the agency’s adverse

 4   credibility determination.    The agency reasonably relied on

 5   inconsistencies between Kumar’s asylum application and

 6   hearing testimony. See Xiu Xia Lin, 534 F.3d at 166-67 &

 7   n.3.    Nor would a reasonable fact finder be compelled to

 8   credit Kumar’s explanations for these inconsistencies.        See

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

10   Accordingly, because Kumar based his applications for

11   withholding of removal and for CAT relief on the same

12   factual predicate that the agency found not credible, both

13   claims necessarily fail.     See Paul v. Gonzales, 444 F.3d

14   148, 156 (2d Cir. 2006).

15          Kumar does not challenge the BIA’s denial of his motion

16   to remand.

17          For the foregoing reasons, the petition for review is

18   DISMISSED in part and DENIED in part.    As we have completed

19   our review, any stay of removal that the Court previously

20   granted in this petition is VACATED, and any pending motion

21   for a stay of removal in this petition is DISMISSED as moot.

22

23

                                     4
1       Any pending request for oral argument in this petition

2   is DENIED in accordance with Federal Rule of Appellate

3   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

4                              FOR THE COURT:
5                              Catherine O’Hagan Wolfe, Clerk
6
7
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