Filed: Jun. 04, 2012
Latest Update: Mar. 26, 2017
Summary: 11-1887-ag Tjua v. Holder BIA Balasquide, IJ A089 253 796 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 T
Summary: 11-1887-ag Tjua v. Holder BIA Balasquide, IJ A089 253 796 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 TH..
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11-1887-ag
Tjua v. Holder
BIA
Balasquide, IJ
A089 253 796
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
4 York, on the 4th day of June, two thousand twelve.
5
6 PRESENT:
7 Rosemary S. Pooler,
8 Richard C. Wesley,
9 Raymond J. Lohier, Jr.,
10 Circuit Judges.
11 _________________________________________
12
13 KENNY TJUA,
14 Petitioner,
15
16 v. 11-1887-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Oleh R. Tustaniwsky, Brooklyn, N.Y.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney General;
26 Anthony P. Nicastro, Senior Litigation
27 Counsel; Sabatino F. Leo, Trial
28 Attorney, Office of Immigration
29 Litigation; United States Department of
30 Justice, 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 is
4 DENIED.
5 Petitioner Kenny Tjua, a native and citizen of Indonesia,
6 seeks review of an April 20, 2011, decision of the BIA
7 affirming the April 16, 2009, decision of an Immigration Judge
8 (“IJ”) denying her application for asylum, withholding of
9 removal, and relief under the Convention Against Torture
10 (“CAT”). In re Tjua, No. A089 253 796 (B.I.A. Apr. 20, 2011),
11 aff’g No. A 089 253 796 (Immig. Ct. N.Y.C. Apr. 16, 2009). We
12 assume the parties’ familiarity with the underlying facts and
13 procedural history of the case.
14 We have reviewed “both the IJ’s and the BIA’s opinions
15 ‘for the sake of completeness.’” Zaman v. Mukasey, 514 F.3d
16 233, 237 (2d Cir. 2008). The applicable standards of review
17 are well established. See 8 U.S.C. § 1252(b)(4)(B); see also
18 Xiu Xia Lin v. Mukasey,
534 F.3d 162, 165-66 (2d Cir. 2008).
19 For applications governed by the REAL ID Act of 2005, an
20 immigration judge may, considering the totality of the
21 circumstances, base a credibility finding on an applicant’s
22 demeanor, the plausibility of her account, and inconsistencies
2
1 in her statements, without regard to whether those
2 inconsistencies go “to the heart of the applicant’s claim.” 8
3 U.S.C. § 1158(b)(1)(B)(iii); In re J–Y–C–, 24 I. & N. Dec.
4 260, 265 (B.I.A. 2007).
5 In this case, substantial evidence supports the IJ’s
6 determination that Tjua did not testify credibly regarding her
7 religious practice in the United States. In so finding, the
8 IJ reasonably relied on inconsistencies in the record. See
9 Xiu Xia Lin, 534 F.3d at 163-64, 166-67. Tjua initially
10 testified that she attends a Catholic church in Flushing, New
11 York, on Sundays at noon. As the IJ found, this testimony was
12 inconsistent with the testimony provided by Tjua’s witness,
13 who testified that he sees Tjua every Sunday at 11:00 a.m.
14 services at a Protestant church located in Elmhurst, New York,
15 and that those services do not conclude until 1:30 p.m. When
16 confronted with this inconsistency, Tjua failed to offer a
17 plausible explanation, stating that she had forgotten to
18 mention the Protestant church. The IJ reasonably declined to
19 credit that explanation, particularly in light of the fact
20 that Tjua admitted on re-examination that the Protestant
21 church is the church that she attends more regularly. See
22 Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005)(finding
3
1 that an immigration judge need not credit an applicant’s
2 explanations unless those explanations would compel a
3 reasonable fact-finder to do so). Accordingly, given the
4 inconsistencies in the record, the IJ reasonably denied Tjua’s
5 application for asylum, withholding of removal, and relief
6 under the CAT, because those claims were based on the same
7 factual predicate. See Paul v. Gonzales, 444 F.3d 148, 155-56
8 (2d Cir. 2006).
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, Tjua’s motion for a
11 stay of removal is DISMISSED as moot. Her request for oral
12 argument in this petition is DENIED in accordance with Federal
13 Rule of Appellate Procedure 34(a)(2), and Second Circuit Local
14 Rule 34.2(c).
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
18
4
