         10-4581-ag
         Singh v. Holder
                                                                                        BIA
                                                                                  Elstein, IJ
                                                                               A094 824 567
                            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 28th day of June, two thousand thirteen.
 5
 6       PRESENT: JOSEPH M. McLAUGHLIN,
 7                PIERRE N. LEVAL,
 8                ROSEMARY S. POOLER,
 9                    Circuit Judges.
10       _______________________________________
11
12       VIKRAM SINGH, AKA VIKRAM GHOTRA, AKA
13       VIKRAM SINGH CHOTRA,
14                Petitioner,
15
16                         v.                                   10-4581-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Genet Getachew, Brooklyn, N.Y.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; Douglas E. Ginsburg,
27                                     Assistant Director; Judith R.
28                                     O’Sullivan, Trial Attorney, Office
29                                     of Immigration Litigation, Civil
30                                     Division, United States Department
31                                     of Justice, Washington, D.C.
 1
 2       UPON DUE CONSIDERATION of this petition for review of a

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

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

 5   is DENIED.

 6       Petitioner Vikram Singh, a native and citizen of India,

 7   seeks review of an October 14, 2010, order of the BIA

 8   affirming the July 6, 2009, decision of Immigration Judge

 9   (“IJ”) Annette S. Elstein denying his application for

10   asylum, withholding of removal, and relief under the

11   Convention Against Torture (“CAT”).     In re Vikram Singh, No.

12   A094 824 567 (B.I.A. Oct. 14, 2010), aff’g No. No. A094 824

13   567 (Immig. Ct. N.Y. City July 6, 2009).     We assume the

14   parties’ familiarity with the underlying facts and

15   procedural history in this case.

16       Under the circumstances of this case, we review the

17   IJ’s decision as supplemented by the BIA’s decision.     See

18   Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).

19   Singh argues that the agency erred in pretermitting his

20   asylum application as untimely because (1) it applied the

21   wrong legal standard in requiring him to provide direct

22   evidence of when he entered the United States, and (2) he

23   established his date of entry.     However, we will not address

                                  2
 1   Singh’s first argument as the issue was not presented to or

 2   considered by the BIA.   See Lin Zhong v. U.S. Dep't of

 3   Justice, 480 F.3d 104, 122 (2d Cir. 2007) (reaffirming that

 4   this Court “may consider only those issues that formed the

 5   basis for [the BIA’s] decision”).   And we do not have

 6   jurisdiction to consider Singh’s second argument, as it

 7   “disputes the correctness of an IJ’s fact-finding,” Xiao Ji

 8   Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.

 9   2006), relating to the agency’s conclusion that his asylum

10   application was untimely.   See 8 U.S.C. § 1158(a)(3)

11   (providing that Courts do not have jurisdiction to review

12   the agency’s finding that an asylum application was

13   untimely).

14       With regard to withholding of removal and CAT relief,

15   the agency found that Singh was not credible because of

16   inconsistencies between his testimony and his Canadian

17   asylum application and drivers’ license, his evasive

18   demeanor, and his failure to provide corroboration of his

19   claims, such as his passport, direct proof of the date of

20   his entry, or affidavits from witnesses in India.     Singh

21   failed to sufficiently challenge most of these findings, see

22   Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7


                                   3
 1   (2d Cir. 2005), and they stand as a valid basis for the

 2   agency’s adverse credibility determination, see Shunfu Li v.

 3   Mukasey, 529 F.3d 141, 146 (2d Cir. 2008).

 4       While the agency’s statement that Singh did not present

 5   affidavits from witnesses in India was flawed, we decline to

 6   remand because “there is no realistic possibility” that the

 7   agency would reach a different conclusion on remand.    Cao He

 8   Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 401 (2d Cir.

 9   2005).    The agency’s inconsistency and demeanor findings are

10   largely supported by the record and provide substantial

11   evidence in support of the agency’s adverse credibility

12   determination.    See 8 U.S.C. § 1158(b)(1)(B)(iii) (providing

13   that the agency may base an adverse credibility

14   determination on inconsistencies without regard to whether

15   they go “to the heart of the applicant’s claim”).    Because

16   Singh’s requests for withholding of removal, and CAT relief

17   shared the same common factual basis, the agency’s finding

18   that his testimony was not credible supports the denial of

19   relief.    See Paul v. Gonzales, 444 F.3d 148, 157 (2d Cir.

20   2006).

21

22



                                    4
1       For the foregoing reasons, the petition for review is

2   DENIED.

3                              FOR THE COURT:
4                              Catherine O’Hagan Wolfe, Clerk




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