12-1833
Samdup v. Holder
BIA
Nelson, IJ
A087 469 108
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 13th day of March, two thousand fourteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 GERARD E. LYNCH,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 KUNCHOK SAMDUP,
14 Petitioner,
15
16 v. 12-1833
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Steven J. Kolleeny, New York, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; Lyle D. Jentzer, Senior
27 Litigation Counsel; Paul F. Stone,
28 Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
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
4 is DENIED.
5 Petitioner Kunchok Samdup, an alleged native of Tibet
6 and citizen of China, seeks review of an April 5, 2012,
7 order of the BIA, affirming the March 31, 2011, decision of
8 an Immigration Judge (“IJ”), which denied asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Kunchok Samdup, No. A087 469
11 108 (B.I.A. Apr. 5, 2012), aff’g No. A087 469 108 (Immig.
12 Ct. New York City Mar. 31, 2011). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we review the
16 decisions of both the IJ and the BIA. See Yun-Zui Guan v.
17 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam).
18 The applicable standards of review are well established.
19 See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v.
20 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam).
21 For applications such as Samdup’s, which are governed
22 by the REAL ID Act, the agency may base a credibility
23 finding on an applicant’s demeanor, the plausibility of his
2
1 account, and inconsistencies in his statements, without
2 regard to whether they go “to the heart of the applicant’s
3 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). We “defer to an
4 IJ’s credibility determination unless, from the totality of
5 the circumstances, it is plain that no reasonable
6 fact-finder could make such an adverse credibility ruling.”
7 Xiu Xia Lin, 534 F.3d at 167.
8 Samdup does not challenge the agency’s finding that he
9 testified inconsistently with his application concerning the
10 length of his father’s detention and whether he had hung
11 pro-Tibetan posters in 2002. Instead, he contends that
12 these inconsistencies were an improper basis for the IJ’s
13 credibility determination because they are not material to
14 his claim. Under the REAL ID Act, however, an IJ may rely
15 on inconsistencies that are “not directly material” to an
16 applicant’s claim where “the cumulative effect of those
17 inconsistencies reasonably could have affected the IJ’s
18 [credibility] evaluation.” Xiu Xia Lin, 534 F.3d at 167.
19 Moreover, the IJ’s credibility determination was not
20 exclusively based on these inconsistencies and was further
21 buttressed by the insufficiency of Samdup’s corroborative
22 evidence and the omission of his high blood pressure and
3
1 blood sugar, which he testified was caused by his
2 mistreatment in China, from his doctor’s affidavit.
3 Samdup’s assertion that the agency improperly relied on the
4 omission from his doctor’s affidavit, because omissions are
5 treated differently than inconsistencies for the purpose of
6 the credibility finding, is incorrect. See Xiu Xia Lin, 534
7 F.3d at 166 (providing that, for purposes of analyzing a
8 credibility determination, “[a]n inconsistency and an
9 omission are . . . functionally equivalent”). Accordingly,
10 Samdup has failed to show that the identified
11 inconsistencies and omission were an improper basis for the
12 IJ’s adverse credibility determination. See Xiu Xia Lin,
13 534 F.3d at 167; see also Tu Lin v. Gonzales, 446 F.3d 395,
14 402 (2d Cir. 2006).
15 Having called Samdup’s credibility into question, the
16 agency reasonably determined that his failure to present
17 sufficient corroborative evidence further undermined his
18 credibility. See 8 U.S.C. § 1158(b)(1)(B)(ii) (providing
19 that “[t]he testimony of the applicant may be sufficient to
20 sustain the applicant’s burden without corroboration, but
21 only if the applicant satisfies the trier of fact that the
22 applicant’s testimony is credible, is persuasive, and refers
4
1 to specific facts sufficient to demonstrate that the
2 applicant is a refugee” (emphasis added)); see also Xiao Ji
3 Chen v. US Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.
4 2006) (noting that the weight accorded to the applicant’s
5 evidence lies largely within the discretion of the agency).
6 We have recognized that an applicant’s failure to
7 corroborate his testimony may bear on credibility, either
8 because the absence of particular corroborating evidence is
9 viewed as suspicious, or because the absence of
10 corroboration makes an applicant unable to rehabilitate
11 testimony that has already been called into question. See
12 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (per
13 curiam).
14 Contrary to Samdup’s assertion, the agency did not err
15 in according his uncle and brother’s letters diminished
16 weight because they were from interested witnesses not
17 subject to cross examination. See Matter of H-L-H- &
18 Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (rejecting
19 letters from applicant’s relatives and friends because they
20 were “interested witnesses not subject to
21 cross-examination”), overruled in part on other grounds by
22 Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012). In
23 any event, Samdup fails to challenge the agency’s
5
1 determination that these letters were insufficient to
2 rehabilitate his credibility because they omitted any
3 reference to his father’s detention and related death.
4 Samdup also asserts that the agency erred in according the
5 one-page translation of his 1997 household registry
6 diminished weight. However, he fails to challenge the
7 agency’s finding that the registry’s listing of his sibling
8 as the head of household contradicted his testimony that his
9 father had died from his detention related injuries in 2001
10 and, therefore, did not rehabilitate his credibility. The
11 agency also did not err in declining to credit Samdup’s
12 letters from the Office of Tibet and Tibetan Tehor
13 Association, which indicated that he was a Tibetan refugee,
14 because Samdup failed to submit the underlying documentation
15 upon which the letters’ representation of Tibetan refugee
16 status was based. Xiao Ji Chen, 471 F.3d at 342.
17 Similarly, contrary to Samdup’s assertion, the agency’s
18 failure to explicitly discuss his letter from the NYU
19 Program for Survivors of Torture does not compellingly
20 suggest that it was ignored because the letter merely
21 indicated, without elaboration, that Samdup had been
22 admitted to the program. See Xiao Ji Chen, 471 F.3d at 337
23 n.17 (presuming that the agency “has taken into account all
6
1 of the evidence before [it], unless the record compellingly
2 suggests otherwise”); Zhi Yun Gao v. Mukasey, 508 F.3d 86,
3 87 (2d Cir. 2007) (noting that the agency is not required to
4 expressly “parse or refute on the record each individual
5 argument or piece of evidence offered by the petitioner”).
6 Finally, Samdup takes issue with the IJ’s finding that his
7 doctor’s affidavit and medical photographs were insufficient
8 to overcome the issues with his inconsistent testimony and
9 other corroborative evidence. However, as we have
10 previously found, where there are two permissible views of
11 the evidence, the fact-finder’s choice between them does not
12 suggest error. See Siewe v. Gonzales, 480 F.3d 160, 167 (2d
13 Cir. 2007).
14 The agency also did not err in failing to independently
15 assess Samdup’s CAT claim based solely on his status as an
16 ethnic Tibetan. We have recognized that an applicant whose
17 claims of past persecution were found not credible may
18 nevertheless establish eligibility for CAT relief through
19 objective evidence. See Paul v. Gonzales, 444 F.3d 148, 156
20 (2d Cir. 2006). However, even assuming that Samdup had
21 independently established his status as an ethnic Tibetan,
22 he failed to support his application with any State
23 Department Reports or other objective evidence of conditions
7
1 for ethnic Tibetans in China. We decline Samdup’s
2 invitation to take judicial notice of the relevant State
3 Department reports because our review is limited to the
4 administrative record. See Xiao Xing Ni v. Gonzales, 494
5 F.3d 260, 269 (2d Cir. 2007); 8 U.S.C. § 1252(b)(4)(A)
6 (providing that “the court of appeals shall decide the
7 petition only on the administrative record on which the
8 order of removal is based”).
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, Samdup’s motion
11 for a stay of removal in this petition is DENIED as moot.
12 Samdup’s request for oral argument is DENIED in accordance
13 with Federal Rule of Appellate Procedure 34(a)(2), and
14 Second Circuit Local Rule 34.1(b).
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
18
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