    11-340-ag
    Makosso v. Holder
                                                                                  BIA
                                                                           Bukszpan, IJ
                                                                          A098 273 526
                          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 Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 31st day of July, two thousand twelve.

    PRESENT:
                        RICHARD C. WESLEY,
                        RAYMOND J. LOHIER, JR.,
                        SUSAN L. CARNEY,
                            Circuit Judges.

    _______________________________________

    JOSEPH MAKOSSO,
             Petitioner,

                        v.                                 11-340-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    ______________________________________

    FOR PETITIONER:                  Joseph Makosso, pro se, New York,
                                     New York.

    FOR RESPONDENT:                  Tony West, Assistant Attorney
                                     General; Ernesto H. Molina, Jr.,
                                     Assistant Director; S. Nicole
                                     Nardone, Trial Attorney, Office of
                                     Immigration Litigation, U.S.
                                     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 DISMISSED in part and DENIED in part.

    Petitioner Joseph Makosso, who claims to be a native

and citizen of Congo, seeks review of the December 30, 2010

decision of the BIA affirming the January 29, 2009 decision

of an Immigration Judge (“IJ”), pretermitting his

application for asylum as untimely and denying his

applications for withholding of removal and relief under the

Convention Against Torture (“CAT”).   In re Joseph Makosso,

No. A098 273 526 (B.I.A. Dec. 30, 2010), aff’g No. A098 273

526 (Immig. Ct. N.Y. City Jan 29, 2009).   We assume the

parties’ familiarity with the underlying facts and

procedural history in this case.

    As an initial matter, we lack jurisdiction to review

the agency’s decision insofar as it pretermitted Makosso’s

untimely asylum application.   See 8 U.S.C. § 1158(a)(3).     We

may, however, review Makosso’s challenges to the agency’s

denial of withholding of removal and CAT relief.

    Under the circumstances of this case, we have reviewed

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


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completeness.”     Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

2008).   The applicable standards of review are well

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

Sun v. BIA, 510 F.3d 377, 380 (2d Cir. 2007).     In pre-REAL

ID Act cases, such as this one, an adverse credibility

determination must be based on “specific, cogent reasons”

that “bear a legitimate nexus” to the finding, and any

discrepancy must be “substantial” when measured against the

record as a whole.     Secaida-Rosales v. INS, 331 F.3d 297,

307 (2d Cir. 2003) (internal quotation marks omitted),

superseded by statute, Pub. L. No. 109-113, 119 Stat. 231,

as recognized in Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163-

64 (2d Cir. 2008).

    We conclude that substantial evidence supports the

agency’s determination that Makosso was not credible.     In

making this determination, the agency reasonably relied in

part on Makosso’s vague, incoherent, and non-responsive

demeanor when testifying.     See Majidi v. Gonzales, 430 F.3d

77, 81 n.1 (2d Cir. 2005).    The agency’s demeanor finding

was further supported by specific examples of contradictory

statements and implausible testimony.     See Li Hua Lin v.

U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006).        For


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example, as the agency noted, Makosso asserted in his asylum

application that in November 1997, he and his family members

were tied up and beaten during a militia attack on their

house, but he later testified that he had fled the house

prior to the attack and thus did not suffer any harm. See Tu

Lin v. Gonzales, 446 F.3d 395, 402-03 (2d Cir. 2006) (noting

significant discrepancies between petitioner’s asylum

application and his later testimony as basis for adverse

credibility finding).   Accordingly, we discern no error in

the agency’s denial on credibility grounds of Makosso’s

applications for withholding of removal and CAT relief.    See

Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

    For the foregoing reasons, the petition for review is

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

our review, any pending motion for a stay of removal and

petitioner’s motion for “petition for asylum” are DISMISSED

as moot.   Any pending request for oral argument in this

petition is DENIED in accordance with Federal Rule of

Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34.1(b).

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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