09-2264-ag

Parnanthu v. Holder BIA Straus, IJ A 077 022 500 

### UNITED STATES COURT OF AP PEALS FOR THE SECOND CIRCU IT 

# SUM MARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY O RDER 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 4 New York, on the 7 day of May, two thousand ten. th 5 6 PRESENT: 7 ROBERT D. SACK, 8 ROBERT A. KATZMANN, 9 GERARD E. LYNCH, 10 Circuit Judges . 11

_______________________________________ 12 13 ARULTHAS PARNANTHU, 14 Petitioner , 15 16 v. 09-2264-ag 17 NAC 18 ERIC H. HOLDER, JR., U.S. ATTORNEY 19 GENERAL, 20 Respondent . 21

______________________________________ 22 23 FOR PETITIONER: Joseph A. Devamithran, Annandale, 24 Virginia. 25 26 FOR RESPONDENT: Tony West, Assistant Attorney 27 General; Ernesto H. Molina, Jr., 28 Assistant Director; Yanal Yousef, 29 Trial Attorney, Office of 30 Immigration Litigation, Washington 31 D.C.2 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 Arulthas Parnanthu, a native and citizen of 6 Sri Lanka, seeks review of the April 29, 2009, order of the 7 BIA affirming the December 12, 2008, decision of Immigration 8 Judge (“IJ”) Michael W. Straus denying his application for 9 asylum, withholding of removal, and relief under the 1 0 Convention Against Torture (“CAT”). In re Arulthas 11 Parnanthu , No. A 077 022 500 (B.I.A. Apr. 29, 2009), aff’g 1 2 No. A 077 022 500 (Immig. Ct. Hartford, CT Dec. 12, 2008). 1 3 We assume the parties’ familiarity with the underlying facts 1 4 and procedural history in this case. 1 5 Under the circumstances of this case, we review both 1 6 the IJ’s and the BIA’s decisions. See Yan Chen v. Gonzales , 1 7 417 F.3d 268, 271 (2d Cir. 2005). The applicable standards 1 8 of review are well-established. See 8 U.S.C. 1 9 § 1252(b)(4)(B); Yanqin Weng v. Holder , 562 F.3d 510, 513 2 0 (2d Cir. 2009). 2 1 Substantial evidence supports the agency’s adverse 2 2 credibility determination. Contrary to Parnanthu’s argument3 1 that the IJ impermissibly revisited his previous credibility 2 determination on remand, because the BIA specifically 3 directed the IJ to consider the material support and 4 terrorism bars “as well as any other issues,” it did not 5 preclude the IJ from considering the new evidence and 6 testimony and finding Parnanthu not to be credible. See 7 Chupina v. Holder , 570 F.3d 99, 103 (2d Cir. 2009) (citing 8 Matter of Patel , 16 I&N Dec. 600, 601 (BIA 1978) (“[R]emand 9 is effective for the stated purpose and for consideration of 1 0 any and all matters which the [immigration judge] deems 1 1 appropriate in the exercise of his administrative discretion 1 2 or which are brought to his attention in compliance with the 1 3 appropriate regulations.”)). 1 4 There is also no indication that the BIA applied an 1 5 incorrect legal standard to its review of the IJ’s adverse 1 6 credibility determination. Although Parnanthu argues that 1 7 any inconsistencies did not go to the heart of his claim, 1 8 under the REAL ID Act, “an IJ may rely on anyinconsistency 1 9 or omission in making an adverse credibility determination 2 0 as long as the ‘totality of the circumstances’ establishes 2 1 that the asylum applicant is not credible.” Xiu Xia Lin v. 22 Mukasey , 534 F.3d 162, 167 (2d Cir. 2008)(quoting 8 U.S.C.4 1 § 1158(b)(1)(B)(iii))(emphasis in original); see also Matter 2 of J-Y-C- , 24 I. & N. Dec. 260, 265 (BIA 2007) (finding that 3 “the REAL ID Act no longer requires the trier of fact to 4 find a nexus between inconsistencies and the ‘heart of the 5 claim’”). 6 Furthermore, although Parnanthu also argues that the 7 BIA failed to consider the record as a whole and refused to 8 apply any weight to his testimony, those arguments are 9 without merit. See Xiao Ji Chen v. U.S. Dep’t of Justice , 1 0 471 F.3d 315, 336 n.17 (“[W]e presume that [the agency] has 1 1 taken into account all of the evidence before [it], unless 1 2 the record compellingly suggests otherwise.”). In its 1 3 decision, the BIA noted the specific inconsistencies it 1 4 relied on in affirming the IJ’s adverse credibility 1 5 determination. Parnanthu does not explain what record 1 6 evidence the BIA failed to consider, or how that evidence 1 7 would have affected his credibility. 1 8 Finally, we find no merit in Parnanthu’s argument that 1 9 the IJ erred in considering the false statements he made 2 0 during his unsuccessful Canadian asylum proceeding. As the 2 1 BIA noted, Parnanthu falsely stated in his Canadian 2 2 application that he was arrested by the Sri Lankan army in5 1 March 1999 and detained for four months, later admitting 2 that he made that statement “because he wanted to obtain 3 relief.” The agency did not err in relying on that 4 inconsistency . See 8 U.S.C. § 1158(b)(1)(B)(iii). 5 In sum, the agency’s credibility determination was 6 supported by substantial evidence. See8 U.S.C. 7 § 1252(b)(4)(B); Xiu Xia Lin , 534 F.3d at 167. Therefore, 8 the agency did not err in denying Parnanthu's application 9 for asylum and withholding of removal. See Paul v. 10 Gonzales , 444 F.3d 148, 156 (2d Cir. 2006). 1 1 Parnanthu does not challenge the agency’s denial of his 1 2 application for CAT relief and has therefore waived any such 1 3 challenge. See Yueging Zhang v. Gonzales , 426 F.3d 540, 541 1 4 n.1, 545 n.7 (2d Cir. 2005). 1 5 For the foregoing reasons, the petition for review is 1 6 DENIED. Having completed our review, we DISMISS the 1 7 petitioner's pending motion for a stay of removal as moot. 18 1 9 FOR THE COURT: 2 0 Catherine O’Hagan Wolfe, Clerk 21 22 23