12-1123
    Gurung v. Holder
                                                                                  BIA
                                                                           Vomacka, IJ
                                                                          A087 797 714
                        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 Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 29th day of April, two thousand fourteen.

    PRESENT:
             PIERRE N. LEVAL,
             REENA RAGGI,
             SUSAN L. CARNEY,
                  Circuit Judges.
    _____________________________________

    SOM BAHADUR GURUNG,
             Petitioner,

                       v.                                  12-1123
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:               Julie Mullaney, Mount Kisco, NY.

    FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
                                  Attorney General; Jennifer P.
                                  Levings, Senior Litigation Counsel;
                                  Carmel A. Morgan, Trial Attorney;
                                  John G. Rafter, Law Clerk; Office of
                                  Immigration Litigation, United
                                  States 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.

    Som Bahadur Gurung, a native and citizen of Nepal,

seeks review of a March 5, 2012, decision of the BIA

(1) affirming the July 28, 2010, decision of Immigration

Judge (“IJ”) Alan A. Vomacka, which denied his application

for asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”); and (2) denying his

motion to reopen and remand.   In re Som Bahadur Gurung, No.

A087 797 714 (B.I.A. Mar. 5, 2012), aff’g No. A087 797 714

(Immig. Ct. N.Y. City July 28, 2010).   We assume the

parties’ familiarity with the underlying facts and

procedural history in this case.

    Under the circumstances of this case, we have reviewed

the IJ’s decision as supplemented by the BIA.    See Yan Chen

v. Gonzales, 

, 271 (2d Cir. 2005).   The

applicable standards of review are well-established.    See

8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 

, 513 (2d Cir. 2009); Li Yong Cao v. U.S. Dep't of

Justice, 

, 156 (2d Cir. 2005).   As an initial

matter, we are without jurisdiction to consider Gurung’s

                               2
challenge to the denial of withholding of removal and CAT

relief, as he failed to exhaust these claims before the BIA.

See 8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 

,

119 (2d Cir. 2006).

I.   Adverse Credibility Determination

     For applications such as Gurung’s, governed by the REAL

ID Act of 2005, the agency may, considering the totality of

the circumstances, base a credibility finding on an asylum

applicant’s “demeanor, candor, or responsiveness,” the

plausibility of his account, and inconsistencies in his

statements, without regard to whether they go “to the heart

of the applicant’s claim,” so long as they reasonably

support an inference that the applicant is not credible.      8

U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); see Xiu Xia Lin

v. Mukasey, 

, 167 (2d Cir. 2008).   An omission

in the applicant’s testimony or supporting documents can

also “serve as a proper basis for an adverse credibility

determination.”   Xiu Xia 

n.3.   We

“defer [ ] to an IJ’s credibility determination unless, from

the totality of the circumstances, it is plain that no

reasonable fact-finder could make such an adverse

credibility ruling.”   

                              3
    In this case, the agency reasonably based its adverse

credibility determination on Gurung’s initial omission from

his testimony of an incident in 2001 when Maoists attacked

Gurung in his home, and inconsistencies between his

statement and his testimony regarding his encounter with

Maoists in the forest in 2006.      In both his appeal to the

BIA and before this Court, Gurung merely states that the

discrepancies are minor, without any further explanation or

discussion.     The IJ, however, reasonably found the

discrepancies to be material—and indicative that Gurung was

not credible.     Absent further explanation as to why a

reasonable fact-finder would be compelled to conclude

otherwise or to credit his testimony, Gurung fails to

overcome the degree of deference we afford to an IJ’s

credibility findings.     See Majidi v. Gonzales, 

,

80-81 (2d Cir. 2005).

    Moreover, the agency reasonably gave limited weight to

Gurung’s corroborating evidence, including letters from the

village development committee, the Maoists Victim

Association, and the police, because the letters were

written in August or September 2009 rather than

contemporaneous to the events they described.      See Qin Wen


                                4
Zheng v. Gonzales, 

, 146-49 (2d Cir. 2007); Xiao

Ji Chen v. U.S. Dep’t of Justice, 

, 342 (2d Cir.

2006).    Given the omission, discrepancies, and lack of

credible corroboration, the totality of the circumstances

supports the agency’s adverse credibility determination.

See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia 

.

II.    Motion to Remand

       The BIA’s denial of a motion to remand is held to the

same substantive standard of review for motions to reopen

and to reconsider.    Li Yong 

.   “The BIA

has ‘broad discretion’ to deny a motion to remand grounded

on new evidence,” and accordingly, we review the BIA’s

denial of such a motion for abuse of discretion.      

(quoting INS v. Doherty, 

, 323 (1992)).

The BIA may deny motions to remand when a prima facie case

for the relief sought is not established.    

      To

establish a prima facie case, a petitioner has “the heavy

burden of demonstrating . . . proffered new evidence [that]

would likely alter the result in [his] case” and to “show a

realistic chance” of obtaining relief upon reopening.      See

Jian Hui Shao v. Mukasey, 

, 168 (2d Cir. 2008)

(internal quotation marks omitted).
                               5
       In this case, Gurung submitted an August 2010 letter

from his village’s development office stating that Gurung

had been threatened and attacked by Maoists, and his life

remained in danger.    Neither his motion to the BIA nor his

brief to this Court explains either why this letter was

previously unavailable, or how it affects the IJ’s adverse

credibility determination and establishes his prima facie

eligibility for asylum.    Moreover, the letter is very

similar to a letter from the same village development

committee, dated August 2009, that Gurung submitted as

evidence in his initial proceedings before the IJ.

Accordingly, the BIA did not abuse its discretion in denying

Gurung’s motion to remand.    See Li Yong 

.

       For the foregoing reasons, the petition for review is

DENIED.

                    FOR THE COURT:
                    Catherine O’Hagan Wolfe, Clerk of Court




                               6