Tjua v. Holder

U.S. Court of Appeals for the Second Circuit
Tjua v. Holder, 471 F. App'x 55 (2d Cir. 2012)

Tjua v. Holder

Opinion

SUMMARY ORDER

Petitioner Kenny Tjua, a native and citizen of Indonesia, seeks review of an April 20, 2011, decision of the BIA affirming the April 16, 2009, decision of an Immigration Judge (“IJ”) denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Tjua, No. A089 258 796 (B.I.A. Apr. 20, 2011), aff'g No. A 089 258 796 (Immig. Ct. N.Y.C. Apr. 16, 2009). We assume the parties’ familiarity with the underlying facts and procedural history of the case.

We have reviewed “both the IJ’s and the BIA’s opinions ‘for the sake of completeness.’ ” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008). The applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). For applications governed by the REAL ID Act of 2005, an immigration judge may, considering the totality of the circumstances, base a credibility finding on an applicant’s demeanor, the plausibility of her account, and inconsistencies in her statements, without regard to whether those inconsistencies go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(l)(B)(iii); In re J-Y-C-, 24 I. & N. Dec. 260, 265 (B.I.A. 2007).

In this case, substantial evidence supports the IJ’s determination that Tjua did not testify credibly regarding her religious practice in the United States. In so finding, the IJ reasonably relied on inconsistencies in the record. See Xiu Xia Lin, 534 F.3d at 163-64, 166-67. Tjua initially testified that she attends a Catholic church in Flushing, New York, on Sundays at noon. As the IJ found, this testimony was inconsistent with the testimony provided by Tjua’s witness, who testified that he sees Tjua every Sunday at 11:00 a.m. services at a Protestant church located in Elmhurst, New York, and that those services do not conclude until 1:30 p.m. When confronted with this inconsistency, Tjua failed to offer a plausible explanation, stating that she had forgotten to mention the Protestant church. The IJ reasonably declined to credit that explanation, particularly in light of the fact that Tjua admitted on re-examination that the Protestant church is the church that she attends more regularly. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (finding that an immigration judge need not credit an applicant’s explanations unless those explanations would compel a reasonable fact-finder to do so). Accordingly, given the inconsistencies in the record, the IJ reasonably denied Tjua’s application for asylum, withholding of removal, and relief under the CAT, because those claims were based on the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 155-56 (2d Cir. 2006).

For the foregoing reasons, the petition for review is DENIED. As we have completed our review, Tjua’s motion for a stay of removal is DISMISSED as moot. Her request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.2(c).

Reference

Full Case Name
Kenny TJUA, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent
Status
Unpublished