Gondal v. Holder , 486 F. App'x 935 ( 2012 )

11-1080-ag
Gondal v. Holder
BIA
Laforest, IJ
A097 517 053
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
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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 11th day of July, two thousand twelve.
PRESENT:
ROBERT D. SACK,
GERARD E. LYNCH,
SUSAN L. CARNEY,
Circuit Judges.
_______________________________________
TARIQ GONDAL,
Petitioner,
v. 11-1080-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Mitchell C. Zwaik, Bohemia, New
York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Linda S. Wernery, Assistant
Director; William C. Minick,
Attorney, 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.
Tariq Gondal, a native and citizen of Pakistan, seeks
review of a February 15, 2011, order of the BIA affirming
the March 4, 2009, decision of Immigration Judge (“IJ”)
Brigitte Laforest, which denied his applications for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Tariq Gondal, No. A097 517
053 (B.I.A. Feb. 15, 2011), aff’g No. A097 517 053 (Immig.
Ct. N.Y. City Mar. 4, 2009). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Because the BIA largely adopted the IJ’s decision, we
have reviewed the decision of the IJ as supplemented by the
BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.
2005). We review the Board’s factual findings, including
credibility determinations, for substantial evidence, see 8
U.S.C. § 1252(b)(4)(B); see also Shi Jie Ge v. Holder, 588
F.3d 90, 93-94 (2d Cir. 2009), and its legal conclusions de
novo, id.2
Gondal challenges the agency’s denial of his
application for asylum and withholding of removal, arguing
that his credible testimony established his claim of
persecution in Pakistan on account of his Ahmadi Muslim
religion. We deny the petition for review because the
agency’s adverse credibility determination is supported by
substantial evidence. Shi Jie Ge, 588 F.3d at 93-94.
In finding Gondal incredible, the agency reasonably
relied on inconsistencies between his testimony and other
record evidence. See Secaida-Rosales v. INS, 331 F.3d 297,
308-09 (2d Cir. 2003) (the impact of omissions and
inconsistencies must be measured against the record as a
whole).1 As the agency observed, Gondal testified that
after his alleged attack for hosting an Ahmadi religious
gathering, he did not return a second time to the police
station to follow up his complaint. But in a statement
included with his asylum application, he asserted that he
did return a second time after two weeks. Gondal also
1
In Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d
Cir. 2008), we recognized that the Real ID Act abrogated
in part the holding in Secaida-Rosales for cases filed
after May 11, 2005, the effective date of the Act.
Because Gondal’s application was filed before this date,
Secaida-Rosales governs this case. See Dong Zhong Zheng
v. Mukasey, 552 F.3d 277, 287 n.6 (2d Cir. 2009).
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testified that he was in hiding with his in-laws from June
to September 2002 as a result of the attack, but he
submitted a “First Information Report” with his asylum
application purporting to corroborate his arrest resulting
from his participation in a protest march in August 2002.
The agency reasonably declined to credit Gondal’s
explanations for these inconsistencies – that “the thing
didn’t come into [his] mind” and that he was only hiding
from the people in his own village but the protest was
outside of his village. See Majidi v. Gonzales, 430 F.3d
77, 80-81 (2d Cir. 2005) (holding that an agency need not
credit an applicant’s explanations for inconsistent
testimony unless those explanations would compel a
reasonable fact-finder to do so).
Gondal further argues that a reasonable fact-finder
would be compelled to conclude that his testimony was
credible because these and other inconsistencies noted by
the agency were minor and isolated. However, the noted
discrepancies are substantial because they go to the heart
of his claim – that the police in Pakistan will not protect
him from religious persecution by other Muslims. See Latifi
v. Gonzales, 430 F.3d 103, 105 (2d Cir. 2005). Because he
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was unable to reasonably explain his inconsistent testimony
regarding the heart of his claim – his attack, complaint to
the police, and arrest – a reasonable fact-finder would not
have been compelled to find his testimony credible. See
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.”); see also Xian Tuan Ye v. Dep’t of
Homeland Security, 446 F.3d 289, 294 (2d Cir. 2006) (“[O]ur
review does not permit us to engage in an independent
evaluation of the cold record or ask ourselves whether, if
we were sitting as fact finders, we would credit or
discredit an applicant’s testimony.”) (internal citation
omitted).
As the only evidence of a threat to Gondal’s life or
freedom depended upon his credibility, the adverse
credibility determination defeats his claim for asylum and
withholding of removal, rendering his other arguments moot.
See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
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For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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