14-136
Gurung v. Holder
BIA
Mulligan, IJ
A089 915 659
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 16th day of March, two thousand fifteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 DENNY CHIN,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 HUM KUMARI GURUNG,
14 Petitioner,
15
16 v. 14-136
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Khagendra Gharti-Chhetry, New York,
24 New York.
25
26 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
27 Attorney General; Leslie McKay,
28 Assistant Director; Lori B. Warlick,
29 Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Hum Kumari Gurung, a native and citizen of
10 Nepal, seeks review of a December 19, 2013, decision of the
11 BIA, affirming the September 7, 2011, decision of an
12 Immigration Judge (“IJ”), denying her application for
13 asylum, withholding of removal, and relief under the
14 Convention Against Torture (“CAT”). In re Hum Kumari
15 Gurung, No. A089 915 659 (B.I.A. Dec. 19, 2013), aff’g No.
16 A089 915 659 (Immig. Ct. N.Y. City Sep. 7, 2011). We assume
17 the parties’ familiarity with the underlying facts and
18 procedural history in this case.
19 Under the circumstances of this case, we have reviewed
20 both the BIA’s and IJ’s opinions. See Zaman v. Mukasey, 514
21 F.3d 233, 237 (2d Cir. 2008)(per curiam). The applicable
22 standards of review are well established. See 8 U.S.C.
23 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
24 (2d Cir. 2009).
2
1 For asylum applications like Gurung’s, governed by the
2 REAL ID Act, the agency may, “[c]onsidering the totality of
3 the circumstances,” base a credibility finding on an
4 applicant’s “demeanor, candor, or responsiveness” as well as
5 inconsistencies in an applicant’s statements and other
6 record evidence “without regard to whether” they go “to the
7 heart of the applicant’s claim.” 8 U.S.C.
8 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
9 163-64 (2d Cir. 2008) (per curiam). “We defer therefore to
10 an IJ’s credibility determination unless, from the totality
11 of the circumstances, it is plain that no reasonable
12 fact-finder could make such an adverse credibility ruling.”
13 Xiu Xia Lin, 534 F.3d at 167.
14 We conclude that the agency’s adverse credibility
15 determination is supported by substantial evidence. The IJ
16 reasonably relied on Gurung’s omission from her asylum
17 application of an alleged physical assault. Gurung’s
18 application states that Maoists came to her office, stole
19 money, and threatened her, but she testified that they also
20 threw her to the ground and damaged her teeth. This assault
21 is central to Gurung’s claim of past persecution, and the IJ
22 reasonably based his adverse credibility determination on
3
1 Gurung’s failure to include it in her written statement.
2 Xian Tuan Ye v. DHS, 446 F.3d 289, 295 (2d Cir. 2006) (per
3 curiam); Xiu Xia Lin, 534 F.3d at 167.
4 Gurung argues that her explanation for this
5 omission—that she did not go to the doctor and therefore had
6 no proof of her injuries–should have been credited.
7 However, the IJ was not compelled to credit the explanation,
8 particularly after Gurung testified that she obtained
9 treatment in the United States for the injuries to her
10 teeth. Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005)
11 The IJ also reasonably relied on Gurung’s inability to
12 testify to the details of the meetings she helped organize
13 for the Rastriya Parjatantra Party (“RPP”) at her hotel.
14 Gurung testified that she regularly attended and
15 participated in RPP meetings at her hotel and that she
16 organized and spoke out on behalf of the party. However,
17 when the IJ asked her for details, she gave vague answers
18 that did not respond to the IJ’s concerns. The IJ
19 reasonably relied on her inability to respond to these
20 questions in concluding that she lacked credibility. See 8
21 U.S.C. § 1158(b)(1)(B)(iii) (providing that applicant’s lack
22 of responsiveness can support an adverse credibility
23 determination).
4
1 The IJ’s adverse credibility determination is further
2 supported by his demeanor finding. The IJ noted multiple
3 instances in which Gurung displayed contrived emotions,
4 looking to the judge as she held her face in order to gauge
5 his reaction, and points at which she paused between answers
6 and seemed increasingly nervous. We typically afford
7 particular deference to demeanor findings. Jin Chen v. U.S.
8 Dep’t of Justice, 426 F.3d 104, 113 (2d Cir. 2005); see also
9 Majidi, 430 F.3d at 81 n.1. That deference is particularly
10 appropriate here, as a cold transcript cannot reflect
11 Gurung’s emotional tone, body language, or the pace of her
12 answers. Only the IJ can observe these details, and we
13 defer to his evaluation of them. Jin Chen, 426 F.3d at 113.
14 Considering the totality of the circumstances,
15 including Gurung’s omission of her physical attack, her
16 inability to testify to the details of the RPP meetings she
17 helped plan and attended, and her poor demeanor throughout
18 the hearing, the IJ’s adverse credibility determination is
19 supported by substantial evidence. 8 U.S.C.
20 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.
21 Accordingly, because all of Gurung’s claims rely on her
22 credibility, the agency did not err in denying asylum,
23 withholding of removal, and CAT relief because the claims
5
1 were all based on the same factual predicate. Paul v.
2 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of
5 removal that the Court previously granted in this petition
6 is VACATED, and any pending motion for a stay of removal in
7 this petition is DISMISSED as moot. Any pending request for
8 oral argument in this petition is DENIED in accordance with
9 Federal Rule of Appellate Procedure 34(a)(2), and Second
10 Circuit Local Rule 34.1(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
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