Filed: Feb. 15, 2011
Latest Update: Feb. 21, 2020
Summary: 09-4384-ag Lakmana v. Holder BIA Videla, IJ A070 703 930 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
Summary: 09-4384-ag Lakmana v. Holder BIA Videla, IJ A070 703 930 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..
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09-4384-ag
Lakmana v. Holder
BIA
Videla, IJ
A070 703 930
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 15 th day of February, two thousand eleven.
PRESENT:
ROBERT A. KATZMANN,
DEBRA ANN LIVINGSTON,
DENNY CHIN,
Circuit Judges.
______________________________________
PUSHPA KUMARA LAKMANA,
Petitioner,
v. 09-4384-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Pushpa Kumara Lakmana, pro se,
Jamaica, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General, Civil Division; Richard M.
Evans, Assistant Director; Jeffrey
J. Bernstein, Attorney, Office of
Immigration Litigation; Civil
Division, U.S. Department of
Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Pushpa Kumara Lakmana, a native and citizen of Sri
Lanka, seeks review of an October 15, 2009, order of the BIA
reissuing its November 18, 2002, order affirming the May 30,
2001, decision of Immigration Judge (“IJ”) Gabriel C. Videla
denying Lakmana’s application for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Lakmana, No. A070 703 930 (B.I.A. Oct. 15,
2009); In re Lakmana, No. A070 703 930 (B.I.A. Nov. 18,
2002), aff’g No. A070 703 930 (Immig. Ct. N.Y. City May 30,
2001). We assume the parties’ familiarity with the
underlying facts and procedural history of the case.
Under the circumstances of this case, we review the
IJ’s decision as the final agency determination. See
8 C.F.R. § 1003.1(e)(4); Shunfu Li v. Mukasey, 529 F.3d 141,
146 (2d Cir. 2008). The applicable standards of review are
well-established. See Corovic v. Mukasey,
519 F.3d 90, 95
(2d Cir. 2008); see also Salimatou Bah v. Mukasey,
529 F.3d
99, 110 (2d Cir. 2008).
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Substantial evidence supports the IJ’s adverse
credibility determination. We will not disturb adverse
credibility determinations when they are based on “specific
examples in the record of inconsistent statements . . .
about matters material to [an applicant’s] claim of
persecution, or on contradictory evidence or inherently
improbable testimony regarding such matters.” Zhou Yun
Zhang v. INS, 386 F.3d 66, 74 (2d Cir. 2004) (internal
quotation marks omitted), overruled in part on other grounds
by Shi Liang Lin v. U.S. Dep’t of Justice,
494 F.3d 296, 305
(2d Cir. 2007). In making the adverse credibility
determination in this case, the IJ found Lakmana not
credible because he: (1) was evasive and non-responsive to
“simple and direct” questions throughout the hearing;
(2) testified that the LTTE came to his mother’s house to
look for him, but did not include that information in his
asylum application; (3) testified inconsistently regarding
the amount of time he lived at his mother’s home; and
(4) stated in his asylum application that LTTE members tried
to kill his wife, but testified that his wife was not harmed
and nothing happened to her on the day the buses were
burned. We are not “compelled to conclude to the contrary.”
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See Shunfu Li, 529 F.3d at 146; see also Xiu Xia Lin v.
Mukasey,
534 F.3d 162, 166 (2d Cir. 2008) (stating that for
purposes of analyzing a credibility determination, “[a]n
inconsistency and an omission are . . . functionally
equivalent”).
The record shows that Lakmana was given an opportunity
to explain the inconsistencies, but was evasive and non-
responsive to the questions posed to him and failed to
provide a coherent explanation for the discrepancies the IJ
identified. Contrary to Lakmana’s assertions, it was not
improper or evidence of bias for the IJ to question him
regarding these discrepancies. See 8 U.S.C. § 1229a(b)(1)
(stating that the IJ has the authority to interrogate,
examine, and cross-examine the applicant and any witnesses).
Furthermore, because the IJ identified specific examples of
Lakmana’s evasiveness, we defer to his demeanor finding.
See Dong Gao v. B.I.A., 482 F.3d 122, 126-27 (2d Cir. 2007)
(granting “particular deference” in applying the substantial
evidence standard to credibility findings based on
demeanor)(internal quotation marks omitted); Li Hua Lin v.
U.S. Dep’t of Justice,
453 F.3d 99, 109 (2d Cir. 2006)
(stating that the Court “can be . . . more confident in
4
[its] review of observations about an applicant's demeanor
where . . . they are supported by specific examples of
inconsistent testimony”).
Moreover, contrary to Lakmana’s claim, even if the
inconsistencies the IJ identified were minor, the IJ was
entitled to rely on their cumulative effect. See Tu Lin v.
Gonzales, 446 F.3d 395, 402 (2d Cir. 2006) (“[E]ven where an
IJ relies on discrepancies or lacunae that, if taken
separately, concern matters collateral or ancillary to the
claim, . . . the cumulative effect may nevertheless be
deemed consequential by the fact-finder.” (internal
citations and quotation marks omitted)); see also Liang Chen
v. U.S. Att'y Gen.,
454 F.3d 103, 106-107 (2d Cir.
2006)(“[A]n IJ need not consider the centrality vel non of
each individual discrepancy or omission” and can instead
“rely upon the cumulative impact of such inconsistencies,
and may conduct an overall evaluation of testimony in light
of its rationality or internal consistency and the manner in
which it hangs together with other evidence.”)(internal
citations and quotation marks omitted). Regardless, the
inconsistencies the IJ relied upon went to the heart of
Lakmana’s claim because they were related to his alleged
5
persecution by the LTTE.
Because Lakmana’s withholding of removal and CAT claims
share the same factual predicate as his asylum claim, the
IJ’s adverse credibility determination precludes any form of
relief. See Paul v. Gonzales, 444 F.3d 148, 157 (2d Cir.
2006). Because the adverse credibility determination is
dispositive, we do not reach the agency’s alternate burden
of proof findings.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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