09-2264-ag

Parnanthu v. Holder

BIA

Straus, IJ

A 077 022 500

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

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

10 Convention Against Torture (“CAT”). In re Arulthas

11 Parnanthu, No. A 077 022 500 (B.I.A. Apr. 29, 2009), aff’g

12 No. A 077 022 500 (Immig. Ct. Hartford, CT Dec. 12, 2008). 

13 We assume the parties’ familiarity with the underlying facts

14 and procedural history in this case.

15 Under the circumstances of this case, we review both

16 the IJ’s and the BIA’s decisions. See Yan Chen v. Gonzales,

17 417 F.3d 268, 271 (2d Cir. 2005). The applicable standards

18 of review are well-established. See 8 U.S.C.

19 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

20 (2d Cir. 2009).

21 Substantial evidence supports the agency’s adverse

22 credibility determination. Contrary to Parnanthu’s argument
3

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

10 any and all matters which the [immigration judge] deems

11 appropriate in the exercise of his administrative discretion

12 or which are brought to his attention in compliance with the

13 appropriate regulations.”)). 

14 There is also no indication that the BIA applied an

15 incorrect legal standard to its review of the IJ’s adverse

16 credibility determination. Although Parnanthu argues that

17 any inconsistencies did not go to the heart of his claim,

18 under the REAL ID Act, “an IJ may rely on any inconsistency

19 or omission in making an adverse credibility determination

20 as long as the ‘totality of the circumstances’ establishes

21 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,

10 471 F.3d 315, 336 n.17 (“[W]e presume that [the agency] has

11 taken into account all of the evidence before [it], unless

12 the record compellingly suggests otherwise.”). In its

13 decision, the BIA noted the specific inconsistencies it

14 relied on in affirming the IJ’s adverse credibility

15 determination. Parnanthu does not explain what record

16 evidence the BIA failed to consider, or how that evidence

17 would have affected his credibility.

18 Finally, we find no merit in Parnanthu’s argument that

19 the IJ erred in considering the false statements he made

20 during his unsuccessful Canadian asylum proceeding. As the

21 BIA noted, Parnanthu falsely stated in his Canadian

22 application that he was arrested by the Sri Lankan army in
5

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. See 8 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). 

11 Parnanthu does not challenge the agency’s denial of his

12 application for CAT relief and has therefore waived any such

13 challenge. See Yueging Zhang v. Gonzales, 426 F.3d 540, 541

14 n.1, 545 n.7 (2d Cir. 2005). 

15 For the foregoing reasons, the petition for review is

16 DENIED. Having completed our review, we DISMISS the

17 petitioner's pending motion for a stay of removal as moot.

18

19 FOR THE COURT: 

20 Catherine O’Hagan Wolfe, Clerk

21

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