Filed: Apr. 20, 2010
Latest Update: Mar. 02, 2020
Summary: 09-3018-ag Sinha v. Holder BIA Videla, IJ A098 235 133 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
Summary: 09-3018-ag Sinha v. Holder BIA Videla, IJ A098 235 133 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 N..
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09-3018-ag
Sinha v. Holder
BIA
Videla, IJ
A098 235 133
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 20 th day of April, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 GUIDO CALABRESI,
10 DEBRA ANN LIVINGSTON,
11 Circuit Judges.
12 _______________________________________
13
14 SUMIT SINHA,
15 Petitioner,
16
17 v. 09-3018-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Amy N. Gell, Gell & Gell, New York,
25 New York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General, Civil Division; Aviva L.
29 Poczter, Senior Litigation Counsel;
30 Jesse D. Lorenz, Trial Attorney,
31 Office of Immigration Litigation,
32 United States Department of Justice,
33 Civil Division, 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 Petitioner Sumit Sinha, a native and citizen of India,
6 seeks review of a June 19, 2009, order of the BIA affirming
7 the November 21, 2007, decision of Immigration Judge (“IJ”)
8 Gabriel C. Videla pretermitting his application for asylum,
9 and denying his application for withholding of removal and
10 relief under the Convention Against Torture (“CAT”). In re
11 Sumit Sinha, No. A098 235 133 (B.I.A. Jun. 19, 2009), aff’g
12 No. A098 235 133 (Immig. Ct. N.Y. City Nov. 21, 2007). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case, we review the
16 decision of the IJ as supplemented by the BIA. See Yan Chen
17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established. See
19 Bah v. Mukasey,
529 F.3d 99, 110 (2d Cir. 2008); Corovic v.
20 Mukasey,
519 F.3d 90, 95 (2d Cir. 2008).
21 I. Asylum
22 Although Sinha alleges in his pre-argument statement
23
2
1 that remand on the one-year issue is required, because Sinha
2 failed to raise this argument in his brief, we deem it
3 waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541
4 n.1, 545 n.7 (2d Cir. 2005); see also McCarthy v. S.E.C.,
5
406 F.3d 179, 186 (2d Cir. 2005) (finding that “arguments
6 not raised in an appellant’s opening brief, but only in his
7 reply brief, are not properly before an appellate court”).
8 II. Withholding of Removal
9 Substantial evidence supports the IJ’s adverse
10 credibility determination. In finding Sinha not credible,
11 the IJ found that: (1) Sinha testified inconsistently as to
12 when he quit his job and moved out of his home; (2) it was
13 implausible that he could not specify what activities he
14 engaged in on behalf of the TCM party; (3) his asylum
15 application made no mention that, as he would later testify,
16 he had to quit his job at a paper mill and move away because
17 he feared CPM members would kill him; (4) he testified
18 inconsistently regarding whether members of the CPM party at
19 the paper mill knew he was a member of the TCM party; and
20 (5) he failed to corroborate his testimony with a letter
21 from his wife.
22 The IJ also found Sinha not credible based on his
3
1 “evasive” and “unresponsive” demeanor and what the IJ
2 described as more minor discrepancies. Sinha does not
3 challenge the IJ’s demeanor finding, or any of these more
4 minor discrepancies. Accordingly, they stand as valid bases
5 for the IJ’s adverse credibility determination. See Shunfu
6 Li v. Mukasey, 529 F.3d 141, 147-48 (2d Cir. 2008).
7 With respect to the findings Sinha does challenge, we
8 are not compelled to reach a conclusion different from that
9 of the BIA. See Majidi v. Gonzales,
430 F.3d 77, 80-81 (2d
10 Cir. 2005). Under the REAL ID Act, the IJ’s adverse
11 credibility determination was amply supported by the record.
12 See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey,
13
534 F.3d 162, 166 n.3 (2d Cir. 2008).
14 III. CAT Relief
15 Contrary to Sinha’s argument that the IJ erred by
16 failing to address his CAT claim based on the “slightly
17 different factual predicate” that “union members either knew
18 or suspected that he was a member of TMC and . . . that he
19 would be killed,” the IJ’s adverse credibility determination
20 was likewise dispositive of this claim. * See Xue Hong Yang
The government’s argument that Sinha failed to
*
exhaust his challenge to the agency’s denial of CAT
relief is without merit because the BIA considered the
4
1 v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).
2 For the foregoing reasons, the petition for review is
3 DENIED. As we have completed our review, any pending motion
4 for a stay of removal in this petition is DISMISSED as moot.
5 Any pending request for oral argument in this petition is
6 DENIED in accordance with Federal Rule of Appellate
7 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
10
11
12
issue. See Xian Tuan Ye v. DHS, 446 F.3d 289, 296-97 (2d
Cir. 2006).
5
