         12-733
         Lamini v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A087 550 692
                             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 12th day of September, two thousand thirteen.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                PETER W. HALL,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _____________________________________
12
13       LILA LAMINI, AKA LILA LAMENI,
14                Petitioner,
15
16                          v.                                  12-733
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Jason A. Nielson, Of Counsel to the
24                                     Law Offices of Thomas Mungoven, New
25                                     York, NY.
26
27       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
28                                     Attorney General; Jennifer L.
29                                     Lightbody, Senior Litigation
 1                          Counsel; Todd J. Cochran, Trial
 2                          Attorney; Office of Immigration
 3                          Litigation, United States Department
 4                          of 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 DISMISSED in part and DENIED in part.

10       Lila Lamini, a native and citizen of Nepal, seeks

11   review of a January 27, 2012, decision of the BIA affirming

12   the September 1, 2010, decision of Immigration Judge (“IJ”)

13   Barbara A. Nelson, which denied her application for asylum,

14   withholding of removal, and relief under the Convention

15   Against Torture (“CAT”).   In re Lila Lamini, No. A087 550

16   692 (B.I.A. Jan. 27, 2012), aff’g No. A087 550 692 (Immig.

17   Ct. N.Y. City Sept. 1, 2010).       We assume the parties’

18   familiarity with the underlying facts and procedural history

19   in this case.

20       As required by the circumstances of this case, we have

21   reviewed the IJ’s decision as modified by the BIA and

22   reviewed only those grounds for the adverse credibility

23   determination that were affirmed by the BIA.       See Xue Hong

24   Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.

25   2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.

                                     2
 1   2005).   The applicable standards of review are well-

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

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

 4   I.   Asylum

 5        Title 8, Section 1158(a)(3) of the United States Code

 6   provides that no court shall have jurisdiction to review the

 7   agency’s finding that an asylum application was untimely

 8   under 8 U.S.C. § 1158(a)(2)(B), or its finding of neither

 9   changed nor extraordinary circumstances excusing the

10   untimeliness under 8 U.S.C. § 1158(a)(2)(D).      We nonetheless

11   retain jurisdiction to review constitutional claims and

12   “questions of law.”   8 U.S.C. § 1252(a)(2)(D).

13        In this case, we lack jurisdiction to review the denial

14   of the asylum application, because Lamini challenges only

15   the IJ’s factual determination that she did not establish

16   extraordinary circumstances sufficient to excuse the filing

17   deadline and, to the extent that Lamini’s claim does raise a

18   question of law as to whether her lack of knowledge

19   regarding filing deadlines was legally sufficient to

20   establish extraordinary circumstances, the claim is so

21   insubstantial and frivolous as to be inadequate to invoke

22   federal-question jurisdiction.    See 8 U.S.C. § 1158(a);


                                   3
 1   Barco-Sandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir. 2008);

 2   Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 323-32

 3   (2d Cir. 2006); see also Matter of Marin, 13 I. & N. Dec.

 4   497, 500-01 (BIA 1970) (ignorance of the law does not excuse

 5   the failure to apply for relief).    For this reason, Lamini’s

 6   appeal of the denial of her request for asylum is dismissed.

 7   II.   Adverse Credibility Determination

 8         For applications such as Lamini’s, governed by the

 9   amendments made to the Immigration and Nationality Act by

10   the REAL ID Act of 2005, the agency may, considering the

11   totality of the circumstances, base a credibility finding on

12   an applicant’s “demeanor, candor, or responsiveness,” the

13   plausibility of her account, and inconsistencies in her

14   statements, without regard to whether they go “to the heart

15   of the applicant’s claim.”     8 U.S.C. §§ 1158(b)(1)(B)(iii),

16   1231(b)(3)(C); see Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167

17   (2d Cir. 2008) (per curiam).    We “defer [ ] to an IJ’s

18   credibility determination unless, from the totality of the

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

20   could make such an adverse credibility ruling.”     Xiu Xia

21   Lin, 534 F.3d at 167.

22



                                     4
 1       In this case, the agency reasonably based its adverse

 2   credibility determination on inconsistencies between

 3   Lamini’s written statement, her documentary evidence, and

 4   her testimony regarding the date on which her husband was

 5   beaten, when she reported that her house had been burned

 6   down, and when she joined the Deurali Women’s Group.   See

 7   8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Liang Chen v.

 8   U.S. Att’y Gen, 454 F.3d 103, 106-07 (2d Cir. 2006) (per

 9   curiam) (noting that the agency may “rely upon the

10   cumulative impact of [] inconsistencies, and may conduct an

11   overall evaluation of testimony in light of its ratonality

12   or internal consistency and the manner in which it hangs

13   together with other evidence” (internal quotation marks and

14   citations omitted)).

15       Furthermore, the BIA reasonably concluded that even if

16   several of the inconsistencies upon which the IJ relied

17   could be attributed to translation issues, there were still

18   other discrepancies that supported an adverse credibility

19   finding, and the discrepancies upon which the BIA relied

20   were not minor, as they went to the heart of Lamini’s claim

21   that the Maoists persecuted her and her husband because of

22   her political activities.   See Xiu Xia Lin, 534 F.3d at 167;

23   Xian Tuan Ye v. DHS, 446 F.3d 289, 295-96 (2d Cir. 2006)
                                   5
 1   (per curiam).    Moreover, the BIA reasonably declined to

 2   credit Lamini’s explanation that she was inconsistent

 3   because, without a lawyer, she was confused.    See Ming Shi

 4   Xue v. BIA, 439 F.3d 111, 124-25 (2d Cir. 2006) (discussing

 5   the IJ’s superior perspective in evaluating credibility;

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

 7   (noting that the agency need not credit an applicant’s

 8   explanations for inconsistent testimony unless those

 9   explanations would compel a reasonable fact finder to do

10   so).

11          Given the inconsistencies, a reasonable fact-finder

12   could find Lamini’s testimony not credible.    See 8 U.S.C.

13   §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d

14   at 167.    Because the only evidence of a threat to Lamini’s

15   life or freedom depended upon her credibility, the adverse

16   credibility determination in this case necessarily precludes

17   success on her claims for withholding of removal and CAT

18   relief.    See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

19   2006); Xue Hong Yang, 426 F.3d at 523.    We therefore deny

20   this portion of Lamini’s appeal.

21          For the foregoing reasons, the petition for review is

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

23   our review, any stay of removal that the Court previously
                                    6
1   granted in this petition is VACATED, and any pending motion

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

3   Any pending request for oral argument in this petition is

4   DENIED in accordance with Federal Rule of Appellate

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

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




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