11-2374-ag Nugroho v. Holder BIA Videla, I.J. A079 708 152 

### 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 Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 4 th** **day of June, two thousand twelve.** 4 5 **PRESENT:** 6 **PIERRE N. LEVAL,** 7 **REENA RAGGI,** 8 **DENNY CHIN,** 9 **Circuit Judges.** 10

**______________________________________** 11 12 **VERRY DWI NUGROHO,** 13 Petitioner**,** 14 **11-2374-ag** 15 **v. NAC** 16 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**______________________________________** 21 22 **FOR PETITIONER: Charles Christopher, Christopher Law** 23 **Group, PC, New York, New York.** 24 25 **FOR RESPONDENT: Tony West, Assistant Attorney** 26 **General; Russell J.E. Verry, Senior** 27 **Litigation Counsel, Elizabeth R.** 28 **Chapman, Trial Attorney, Office of** 29 **Immigration Litigation, United** 30 **States Department of Justice,** 31 **Washington, D.C.** 322 UPON 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 Verry Dwi Nugroho, a native and citizen of 5 Indonesia, seeks review of a May 20, 2011, decision of the 6 BIA affirming the July 28, 2009, decision of Immigration 7 Judge (“IJ”) Gabriel C. Videla, finding that Nugroho was 8 incredible and denying his application for asylum, 9 withholding of removal, and relief under the Convention 10 Against Torture. In re Verry Dwi Nugroho, No. A079 708 152 11 (B.I.A. May 20, 2011), aff’g, No. A079 708 152 (Immig. Ct. 12 N.Y. City July 28, 2009). We assume the parties’ 13 familiarity with the underlying facts and procedural history 14 of the case. 15 Under the circumstances of this case, we have reviewed 16 both the IJ’s and the BIA’s opinions “for the sake of 17 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 18 2008). The applicable standards of review are 19 well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng 20 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). 21

223 In finding that Nugroho was incredible, the agency 1 reasonably relied on his failure to include in his asylum 2 application the threat he allegedly received in 2001, and 3 the inconsistency between his statement in the application 4 that his wife had repeatedly moved and his testimony that 5 she had been living with a relative for the past five years. 6 These inconsistencies were substantial and bore a legitimate 7 nexus to his claim, as the threat and his wife’s repeated 8 moves would support his assertion that his attackers were 9 continuing to look for him. See Secaida-Rosales v. INS, 331 10 F.3d 297, 307 (2d Cir. 2003), superseded by statute on other 11 grounds as recognized in Xiu Xia Lin v. Mukasey, 534 F.3d 12 162, 167 (2d Cir. 2008). 13 Although Nugroho now contends that he did include the 14 threat in the asylum application, at the hearing he 15 testified that he had forgotten to include this threat. 16 Nugroho also contends that there is no inconsistency as to 17 whether his wife moved repeatedly because, in his asylum 18 application, he had stated that he had moved from place to 19 place, not his wife. However, this contention fails to 20 explain Nugroho's statement in the asylum application that 21 his wife moved from place to place. As the Government 224 correctly notes, Nugroho failed to present these 1 explanations to the agency, and they are unexhausted. See 2 Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d 3 Cir. 2007). Regardless, neither of Nugroho’s explanations 4 compels the conclusion that the credibility finding must be 5 reversed. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d 6 Cir. 2005) (finding that the agency need not credit an 7 applicant’s explanations unless those explanations would 8 compel a reasonable fact-finder to do so). 9 Further, Nugroho has not challenged the additional 10 basis of the agency’s adverse credibility finding, the 11 implausibility of his testimony that he repeatedly changed 12 his residence in order to evade his attackers, but that he 13 continued to work at the same church, although his attackers 14 knew he worked there. Because the agency’s adverse 15 credibility determination was supported by substantial 16 evidence, the denial of Nugroho’s application for asylum, 17 withholding of removal, and CAT relief was not in error 18 because his claims were all based on the same factual 19 predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 20 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 21 523 (2d Cir. 2005). 225 For the foregoing reasons, the petition for review is 1 DENIED. As we have completed our review, any stay of 2 removal that the Court previously granted in this petition 3 is VACATED, and any pending motion for a stay of removal in 4 this petition is DENIED as moot. Any pending request for 5 oral argument in this petition is DENIED in accordance with 6 Federal Rule of Appellate Procedure 34(a)(2), and Second 7 Circuit Local Rule 34.1(b). 8
FOR THE COURT: 9 Catherine O’Hagan Wolfe, Clerk 10 11 12