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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 13th 4 day of July, two thousand eleven.

5

6 PRESENT:

7 PIERRE N. LEVAL,

8 JOSÉ A. CABRANES,

9 ROBERT D. SACK,

10 Circuit Judges. 

11 _______________________________________

12

13 GURJEET BHULLAR,

14 Petitioner, 

15

16 v. 10-1913-ag

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _______________________________________

22

23 FOR PETITIONER: Amy N. Gell, New York, New York.

24

25 FOR RESPONDENT: Tony West, Assistant Attorney

26 General; Ernesto H. Molina, Jr.,

27 Assistant Director; S. Nicole

28 Nardone, Trial Attorney, Office of

29 Immigration Litigation, United

30 States Department of Justice,

31 Washington, 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 Gurjeet Bhullar, a native and citizen of India, seeks

6 review of a April 28, 2010, decision of the BIA affirming

7 the September 16, 2008, decision of Immigration Judge (“IJ”)

8 Douglas B. Schoppert, which denied his application for

9 asylum, withholding of removal and relief under the

10 Convention Against Torture (“CAT”). In re Gurjeet Bhullar,

11 No. A097 527 900 (B.I.A. Apr. 28, 2010), aff’g No. A097 527

12 900 (Immig. Ct. N.Y. City Sept. 16, 2008). We assume the

13 parties’ familiarity with the underlying facts and

14 procedural history in this case.

15 Under the circumstances of this case, we have reviewed

16 the IJ’s decision as modified by the BIA decision,

17 considering only the bases relied upon by the BIA as support

18 for the adverse credibility determination. See Xue Hong

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

20 2005). The applicable standards of review are well21 established. See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin

22 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). Because

23 Bhullar does not challenge the pretermission of his asylum

2
1 application, and as his CAT claim was not exhausted because

2 it was not raised before the BIA, we address only the

3 agency’s denial of withholding of removal. See 8 U.S.C.

4 § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir.

5 2006); Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545

6 n.7 (2d Cir. 2005); see also 8 U.S.C. § 1158(a)(3). 

7 For withholding applications such as this one, governed

8 by the amendments made to the Immigration and Nationality

9 Act by the REAL ID Act of 2005, the agency may, considering

10 the totality of the circumstances, base a credibility

11 finding on an asylum applicant’s “demeanor, candor, or

12 responsiveness,” the plausibility of his or her account, and

13 inconsistencies in his or her statements, without regard to

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

15 See 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia

16 Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). We “defer

17 to an IJ’s credibility determination unless, from the

18 totality of the circumstances, it is plain that no

19 reasonable fact-finder could make such an adverse

20 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. In this

21 case, the agency’s adverse credibility determination is

22 supported by substantial evidence, given the omissions in

23 Bhullar’s asylum application, the discrepancies between his

3
1 application and his testimony, and the internal

2 inconsistences in his testimony. 

3 Specifically, the IJ reasonably relied on the fact that

4 although Bhullar did not assert that he had ever been

5 arrested in his written application, he testified that he

6 attended two demonstrations, and was arrested, detained and

7 beaten on both occasions. See id. at 166 (for the purposes

8 of analyzing a credibility determination, “[a]n

9 inconsistency and an omission are . . . functionally

10 equivalent.”). In addition, Bhullar gave inconsistent

11 statements regarding when he left India, testifying first

12 that he left in July 2001 - a statement supported by his

13 application and other affidavits - but then testified that

14 he departed in 2002 when confronted with his passport, which

15 showed that he arrived in Canada in 2002. See id. at 167

16 (holding that the Court should overturn the agency’s adverse

17 credibility ruling only where no reasonable fact-finder

18 could have made such a ruling).

19 Bhullar argues that the agency did not properly

20 consider the affidavits he submitted from his mother and a

21 neighbor in India. However, the IJ reasonably declined to

22 credit the affidavits because they were identical to

4
1 Bhullar’s statement in his asylum application, and there was

2 no evidence that they had been mailed from India. See Mei

3 Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 524 (2d Cir.

4 2007); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,

5 342 (2d Cir. 2006). 

6 For the foregoing reasons, the petition for review is

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

8 removal that the Court previously granted in this petition

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

10 this petition is DISMISSED as moot. Any pending request for

11 oral argument in this petition is DENIED in accordance with

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

13 Circuit Local Rule 34.1(b).

14 FOR THE COURT: 

15 Catherine O’Hagan Wolfe, Clerk

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