Karki v. Holder

11-282
Karki v. Holder
BIA
Hom, IJ
A089 255 806/807

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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 14th day of August, two thousand thirteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 ROSEMARY S. POOLER,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _________________________________________
12
13 BHARAT KARKI, GITA KARKI,
14 Petitioners,
15
16 v. 11-282
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONERS: Dilli Raj Bhatta, The Bhatta Law Firm,
24 P.C., New York, NY.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney General;
27 Emily Anne Radford, Assistant Director;
28 Aric A. Anderson, Trial Attorney,
29 Office of Immigration Litigation,
30 United States Department of Justice,
31 Washington, DC.
 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 is

4 DENIED.

5 Petitioners Bharat Karki and Gita Karki, natives and

6 citizens of Nepal, seek review of a December 28, 2010,

7 decision of the BIA affirming the January 7, 2009, decision of

8 Immigration Judge (“IJ”) Sandy K. Hom denying Bharat’s

9 application for asylum, withholding of removal, and relief

10 under the Convention Against Torture (“CAT”). In re Bharat

11 Karki, Gita Karki, Nos. A089 255 806/807 (B.I.A. Dec. 28,

12 2010), aff’g Nos. A089 255 806/807 (Immig. Ct. N.Y. City Jan.

13 7, 2009). We assume the parties’ familiarity with the

14 underlying facts and procedural history of the case.

15 Under the circumstances of this case, we have reviewed the

16 IJ’s decision as modified by the BIA. See Xue Hong Yang v.

17 U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The

18 applicable standards of review are wellestablished. See

19 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534

20 F.3d 162, 165-66 (2d Cir. 2008).

21 Substantial evidence supports the agency’s determination

22 that Petitioners did not testify credibly regarding Bharat’s

2
 1 claim that he had been persecuted in Nepal. The agency

2 reasonably relied on inconsistencies in the record.

3 See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534

4 F.3d at 163-64, 166-67. For example, as the agency noted,

5 Bharat and Gita provided inconsistent testimony regarding when

6 they moved their children from their village to Kathmandu.

7 The agency also observed that Petitioners provided

8 inconsistent testimony regarding the extent of injuries

9 sustained by Bharat in the October 2005 assault. The agency

10 reasonably rejected Gita’s explanation that her husband’s

11 description of his injury employed Nepalese slang, and that he

12 did not mean that his nose was literally broken, particularly

13 in light of the fact that, when confronted with this

14 inconsistency, Gita began to explain it as if she had

15 testified that Bharat’s nose was broken, when in fact it was

16 Bharat who had testified as such. See Majidi v. Gonzales, 430

17 F.3d 77, 80-81 (2d Cir. 2005) (finding that an agency need not

18 credit an applicant’s explanations unless those explanations

19 would compel a reasonable fact-finder to do so). Further, as

20 the agency noted, the Petitioners testified inconsistently

21 regarding why Bharat’s passport photograph, allegedly taken

22 eight days after the October 2005 assault, bore no evidence of

23 the injuries to his face.

3
 1 Petitioners generally argue that the agency erred in

2 relying on inconsistencies that were not material to their

3 claims for relief, and in failing to explain why those

4 inconsistencies were material. However, because Bharat’s

5 asylum application is governed by the REAL ID Act, the agency

6 permissibly based its adverse credibility finding on the

7 inconsistencies identified in the record, without regard to

8 whether they go “to the heart of the applicant’s claim.”

9 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d

10 at 164 (“We conclude that, in evaluating an asylum applicant’s

11 credibility, an IJ may rely on omissions and inconsistencies

12 that do not directly relate to the applicant’s claim of

13 persecution as long as the totality of the circumstances

14 establish that the applicant is not credible.”).

15 Petitioners argue that the agency erred by failing to

16 consider the totality of the circumstances, specifically by

17 failing to address that the Petitioners testified

18 consistently with respect to other instances of Maoist

19 harassment and violence they experienced before leaving Nepal.

20 Petitioners’ argument is merely a reiteration of their

21 assertion that the IJ relied on minor and isolated

22 inconsistencies in the record. Because the agency identified

4
 1 specific instances of inconsistencies in the Petitioners’

2 testimonies, nothing in the record compels the conclusion that

3 they were otherwise credible. See Xiu Xia Lin, 534 F.3d at

4 163-64 (explaining that we will “defer . . . to an IJ’s

5 credibility determination unless, from the totality of the

6 circumstances, it is plain that no reasonable fact-finder

7 could make such an adverse credibility ruling”). Finally, the

8 record contradicts Petitioners’ argument that the agency erred

9 in relying on inconsistencies without giving them an

10 opportunity to explain the inconsistencies, as the hearing

11 transcript reflects that the IJ gave Gita an opportunity to

12 explain each of the inconsistencies between her and Bharat’s

13 testimony on which he relied in making the adverse credibility

14 decision.

15 Given the inconsistencies in the record and in light of

16 our deference to the agency’s findings regarding the weight of

17 the evidence, the agency’s adverse credibility determination

18 regarding Bharat’s claim that he suffered past persecution and

19 had a well-founded fear of future persecution on account of

20 his political opinion is supported by substantial evidence.

21 Accordingly, the agency did not err in denying asylum,

22 withholding of removal, and CAT relief insofar as those claims

5
1 were based on Bharat’s alleged persecution by Maoists in

2 Nepal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

3 2006); Xue Hong Yang, 426 F.3d at 523.

4 For the foregoing reasons, the petition for review is

5 DENIED. As we have completed our review, the stay of removal

6 that the Court previously granted in this petition is VACATED.

7

8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk

6