10-1913-ag Bhullar v. Holder BIA Schoppert, IJ A097 527 900 

### 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 13 th** **day of July, two thousand eleven.** 4 5 **PRESENT:** 6 **PIERRE N. LEVAL,** 7 **JOSÉ A. CABRANES,** 8 **ROBERT D. SACK,** 9 Circuit Judges**.** 10

**_______________________________________** 11 12 **GURJEET BHULLAR,** 13 Petitioner**,** 14 15 **v. 10-1913-ag** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_______________________________________** 21 22 **FOR PETITIONER: Amy N. Gell, New York, New York.** 23 24 **FOR RESPONDENT: Tony West, Assistant Attorney** 25 **General; Ernesto H. Molina, Jr.,** 26 **Assistant Director; S. Nicole** 27 **Nardone, Trial Attorney, Office of** 28 **Immigration Litigation, United** 29 **States Department of Justice,** 30 **Washington, 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 Gurjeet Bhullar, a native and citizen of India, seeks 5 review of a April 28, 2010, decision of the BIA affirming 6 the September 16, 2008, decision of Immigration Judge (“IJ”) 7 Douglas B. Schoppert, which denied his application for 8 asylum, withholding of removal and relief under the 9 Convention Against Torture (“CAT”). In re Gurjeet Bhullar , 10 No. A097 527 900 (B.I.A. Apr. 28, 2010),aff’gNo. A097 527 11 900 (Immig. Ct. N.Y. City Sept. 16, 2008). We assume the 12 parties’ familiarity with the underlying facts and 13 procedural history in this case. 14 Under the circumstances of this case, we have reviewed 15 the IJ’s decision as modified by the BIA decision, 16 considering only the bases relied upon by the BIA as support 17 for the adverse credibility determination. See Xue Hong 18 Yang v. U.S. Dep’t of Justice , 426 F.3d 520, 522 (2d Cir. 19 2005). The applicable standards of review are well20 established. See8 U.S.C. § 1252(b)(4)(B); see also Yanqin 21 Weng v. Holder , 562 F.3d 510, 513 (2d Cir. 2009). Because 22 Bhullar does not challenge the pretermission of his asylum 23
2application, and as his CAT claim was not exhausted because 1 it was not raised before the BIA, we address only the 2 agency’s denial of withholding of removal. See8 U.S.C. 3 § 1252(d)(1); Karaj v. Gonzales , 462 F.3d 113, 119 (2d Cir. 4 2006); Yueqing Zhang v. Gonzales , 426 F.3d 540, 541 n.1, 545 5 n.7 (2d Cir. 2005); see also 8 U.S.C. § 1158(a)(3). 6 For withholding applications such as this one, governed 7 by the amendments made to the Immigration and Nationality 8 Act by the REAL ID Act of 2005, the agency may, considering 9 the totality of the circumstances, base a credibility 10 finding on an asylum applicant’s “demeanor, candor, or 11 responsiveness,” the plausibility of his or her account, and 12 inconsistencies in his or her statements, without regard to 13 whether they go “to the heart of the applicant’s claim.” 14
See8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia 15 Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). We “defer 16 to an IJ’s credibility determination unless, from the 17 totality of the circumstances, it is plain that no 18 reasonable fact-finder could make such an adverse 19 credibility ruling.” Xiu Xia Lin , 534 F.3d at 167. In this 20 case, the agency’s adverse credibility determination is 21 supported by substantial evidence, given the omissions in 22 Bhullar’s asylum application, the discrepancies between his 23 3application and his testimony, and the internal 1 inconsistences in his testimony. 2 Specifically, the IJ reasonably relied on the fact that 3 although Bhullar did not assert that he had ever been 4 arrested in his written application, he testified that he 5 attended two demonstrations, and was arrested, detained and 6 beaten on both occasions. See id . at 166 (for the purposes 7 of analyzing a credibility determination, “[a]n 8 inconsistency and an omission are . . . functionally 9 equivalent.”). In addition, Bhullar gave inconsistent 10 statements regarding when he left India, testifying first 11 that he left in July 2001 - a statement supported by his 12 application and other affidavits - but then testified that 13 he departed in 2002 when confronted with his passport, which 14 showed that he arrived in Canada in 2002. See id . at 167 15 (holding that the Court should overturn the agency’s adverse 16 credibility ruling only where no reasonable fact-finder 17 could have made such a ruling). 18 Bhullar argues that the agency did not properly 19 consider the affidavits he submitted from his mother and a 20 neighbor in India. However, the IJ reasonably declined to 21 credit the affidavits because they were identical to 22

4Bhullar’s statement in his asylum application, and there was 1 no evidence that they had been mailed from India. See Mei 2 Chai Ye v. U.S. Dep’t of Justice , 489 F.3d 517, 524 (2d Cir. 3 2007);Xiao Ji Chen v. U.S. Dep’t of Justice , 471 F.3d 315, 4
342 (2d Cir. 2006). 5 For the foregoing reasons, the petition for review is 6 DENIED. As we have completed our review, any stay of 7 removal that the Court previously granted in this petition 8 is VACATED, and any pending motion for a stay of removal in 9 this petition is DISMISSED as moot. Any pending request for 10 oral argument in this petition is DENIED in accordance with 11 Federal Rule of Appellate Procedure 34(a)(2), and Second 12 Circuit Local Rule 34.1(b). 13
FOR THE COURT: 14 Catherine O’Hagan Wolfe, Clerk 15 16 17 18 19

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