12-2796 Ojha v. Holder BIA Videla, IJ A087 464 999 

### 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** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 17 th** **day of December, two thousand thirteen.** 4 5 **PRESENT:** 6 **DENNIS JACOBS,** 7 **DENNY CHIN,** 8 **SUSAN L. CARNEY,** 9 Circuit Judges**.** 10

**_______________________________________** 11 12 **PARASH MANI OJHA,** 13 Petitioner**,** 14 15 **v. 12-2796** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**______________________________________** 21 22 **FOR PETITIONER: Gary J. Yerman, New York, New York.** 23 24 **FOR RESPONDENT: Stuart F. Delery, Acting Assistant** 25 **Attorney General; Ernesto H. Molina,** 26 **Jr., Assistant Director; D. Nicholas** 27 **Harling, Trial Attorney, Office of** 28 **Immigration Litigation, U.S.** 29 **Department of Justice, Washington** 30 **D.C.** 31UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DENIED. 4 Petitioner Parash Mani Ojha, a native and citizen of 5 Nepal, seeks review of a June 26, 2012, decision of the BIA, 6 affirming the January 4, 2011, decision of Immigration Judge 7 (“IJ”) Gabriel C. Videla, denying Ojha’s application for 8 asylum, withholding of removal, and relief under the 9 Convention Against Torture (“CAT”). In re Parash Mani Ojha , 10 No. A087 464 999 (B.I.A. June 26, 2012), aff’gNo. A087 464 11 999 (Immig. Ct. N.Y. City Jan. 4, 2011). We assume the 12 parties’ familiarity with the underlying facts, procedural 13 history, and issues for review. 14 Under the circumstances of this case, we review the 15 decision of the IJ as modified by the BIA. See Xue Hong 16 Yang v. U.S. Dep’t of Justice , 426 F.3d 520, 522 (2d Cir. 17 2005). The applicable standards of review are well18 established. See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia 19 Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). 20 For asylum applications governed by the REAL ID Act, 21 such as the application in this case, the agency may, 22

2“[c]onsidering the totality of the circumstances,” base a 1 credibility finding on an asylum applicant’s demeanor, the 2 plausibility of the applicant’s account, and inconsistencies 3 in her statements and other record evidence, without regard 4 to whether they go “to the heart of the applicant’s claim.” 5 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163- 6 64. Substantial evidence supports the agency’s adverse 7 credibility determination. 8 In finding Ojha not credible, the agency reasonably 9 relied on his demeanor, noting that he laughed 10 inappropriately at times and that his testimony was hesitant 11 and evasive at other times. See8 U.S.C. § 12 1158(b)(1)(B)(iii); see also Majidi v. Gonzales , 430 F.3d 13 77, 81 n.1 (2d Cir. 2005). Those findings are supported by 14 the hearing transcript. 15 The agency’s adverse credibility determination is 16 further supported by specific examples of inconsistencies 17 between Ojha’s testimony and his other statements of record. 18 See Li Hua Lin v. U.S. Dep’t of Justice , 453 F.3d 99, 109 19 (2d Cir. 2006) (“We can be still more confident in our 20 review of observations about an applicant’s demeanor where, 21 as here, they are supported by specific examples of 22

3inconsistent testimony.”). Indeed, the agency reasonably 1 found inconsistent statements regarding his motives for 2 coming to the United States and whether he suffered harm on 3 account of his political activities after 2005. See 4 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 5 F.3d at 165-67. Moreover, a reasonable fact finder would 6 not be compelled to credit Ojha’s explanations for these 7 inconsistencies. See Majidi , 430 F.3d at 80-81. 8 Given the demeanor and inconsistency findings, the 9 agency’s adverse credibility determination is supported by 10 substantial evidence, and was dispositive of Ojha’s claims 11 for asylum, withholding of removal, and CAT relief. See Xiu 12 Xia Lin, 534 F.3d at 167; see also Paul v. Gonzales , 444 13 F.3d 148, 156 (2d Cir. 2006). Accordingly, we need not 14 review the agency’s alternative determination that Ojha 15 failed to satisfy his burden of proof. 16 For the foregoing reasons, the petition for review is 17 DENIED. As we have completed our review, any stay of 18 removal that the Court previously granted in this petition 19 is VACATED, and any pending motion for a stay of removal in 20 this petition is DENIED as moot. Any pending request for 21 oral argument in this petition is DENIED in accordance with 22

4Federal Rule of Appellate Procedure 34(a)(2), and Second 1 Circuit Local Rule 34.1(b). 2

FOR THE COURT: 3 Catherine O’Hagan Wolfe, Clerk 4 5

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