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.

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,

on the 17th 4 day of December, two thousand thirteen.

5

6 PRESENT:

7 DENNIS JACOBS,

8 DENNY CHIN,

9 SUSAN L. CARNEY,

10 Circuit Judges. 

11 _______________________________________

12

13 PARASH MANI OJHA,

14 Petitioner, 

15

16 v. 12-2796

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 ______________________________________ 22

23 FOR PETITIONER: Gary J. Yerman, New York, New York.

24

25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

26 Attorney General; Ernesto H. Molina,

27 Jr., Assistant Director; D. Nicholas

28 Harling, Trial Attorney, Office of

29 Immigration Litigation, U.S.

30 Department of Justice, Washington

31 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 DENIED.

5 Petitioner Parash Mani Ojha, a native and citizen of

6 Nepal, seeks review of a June 26, 2012, decision of the BIA,

7 affirming the January 4, 2011, decision of Immigration Judge

8 (“IJ”) Gabriel C. Videla, denying Ojha’s application for

9 asylum, withholding of removal, and relief under the

10 Convention Against Torture (“CAT”). In re Parash Mani Ojha,

11 No. A087 464 999 (B.I.A. June 26, 2012), aff’g No. A087 464

12 999 (Immig. Ct. N.Y. City Jan. 4, 2011). We assume the

13 parties’ familiarity with the underlying facts, procedural

14 history, and issues for review.

15 Under the circumstances of this case, we review the

16 decision of the IJ as modified by the BIA. See Xue Hong

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

18 2005). The applicable standards of review are well19 established. See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia

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

21 For asylum applications governed by the REAL ID Act,

22 such as the application in this case, the agency may,

2
1 “[c]onsidering the totality of the circumstances,” base a

2 credibility finding on an asylum applicant’s demeanor, the

3 plausibility of the applicant’s account, and inconsistencies

4 in her statements and other record evidence, without regard

5 to whether they go “to the heart of the applicant’s claim.” 

6 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-

7 64. Substantial evidence supports the agency’s adverse

8 credibility determination. 

9 In finding Ojha not credible, the agency reasonably

10 relied on his demeanor, noting that he laughed

11 inappropriately at times and that his testimony was hesitant

12 and evasive at other times. See 8 U.S.C. §

13 1158(b)(1)(B)(iii); see also Majidi v. Gonzales, 430 F.3d

14 77, 81 n.1 (2d Cir. 2005). Those findings are supported by

15 the hearing transcript. 

16 The agency’s adverse credibility determination is

17 further supported by specific examples of inconsistencies

18 between Ojha’s testimony and his other statements of record. 

19 See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109

20 (2d Cir. 2006) (“We can be still more confident in our

21 review of observations about an applicant’s demeanor where,

22 as here, they are supported by specific examples of

3
1 inconsistent testimony.”). Indeed, the agency reasonably

2 found inconsistent statements regarding his motives for

3 coming to the United States and whether he suffered harm on

4 account of his political activities after 2005. See

5 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534

6 F.3d at 165-67. Moreover, a reasonable fact finder would

7 not be compelled to credit Ojha’s explanations for these

8 inconsistencies. See Majidi, 430 F.3d at 80-81. 

9 Given the demeanor and inconsistency findings, the

10 agency’s adverse credibility determination is supported by

11 substantial evidence, and was dispositive of Ojha’s claims

12 for asylum, withholding of removal, and CAT relief. See Xiu

13 Xia Lin, 534 F.3d at 167; see also Paul v. Gonzales, 444

14 F.3d 148, 156 (2d Cir. 2006). Accordingly, we need not

15 review the agency’s alternative determination that Ojha

16 failed to satisfy his burden of proof.

17 For the foregoing reasons, the petition for review is

18 DENIED. As we have completed our review, any stay of

19 removal that the Court previously granted in this petition

20 is VACATED, and any pending motion for a stay of removal in

21 this petition is DENIED as moot. Any pending request for

22 oral argument in this petition is DENIED in accordance with

4
1 Federal Rule of Appellate Procedure 34(a)(2), and Second

2 Circuit Local Rule 34.1(b).

3 FOR THE COURT: 

4 Catherine O’Hagan Wolfe, Clerk

5

5