Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
12-11-2007
Gurung v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1066
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-1066
HEMRAJ GURUNG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order
of the Board of Immigration Appeals
(No. A79-307-224)
Immigration Judge: Hon. Annie S. Garcy
Submitted Under Third Circuit LAR 34.1(a)
December 10, 2007
Before: SLOVITER, AMBRO, Circuit Judges, and RESTANI*, Judge
(Filed: December 11, 2007)
OPINION
SLOVITER, Circuit Judge.
*
Hon. Jane A. Restani, Chief Judge, United States Court of
International Trade, sitting by designation.
I.
Hemraj Gurung, a native of Bhutan, overstayed his authorization to remain in the
United States in violation of section 237(a)(1)(B) of the Immigration and Nationality Act
(“INA”). Gurung maintained that his political activities in Bhutan, Nepal, and India
advocating for democracy in Bhutan prevented his safe return to his home country.
The Immigration and Naturalization Service (“INS”)1 charged Gurung with
removability. Gurung appeared before an Immigration Judge (“IJ”), conceded his
removability, and sought relief, including political asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). The IJ granted Gurung’s
asylum application, subject to reopening if the INS obtained evidence that a letter
purportedly from the United Nations High Commissioner for Refugees (“UNHCR”) in
support of Gurung was in fact fraudulent. The INS filed a motion to reopen proceedings
with evidence that this document was fraudulent. The IJ granted the motion and vacated
the order granting asylum.
At a merits hearing on Gurung’s application on November 10, 2003, Gurung’s
counsel acknowledged that the introduction of the false UNHCR letter created a
presumption of adverse credibility, but Gurung testified that he feared persecution in
Bhutan for his political activities. He testified to having been arrested and beaten in
1
The functions of the INS were transferred to the
Department of Homeland Security as of March 1, 2003. See 6
U.S.C. § 271 (2002).
2
August 1989 for writing a newspaper article critical of the condition of a school he had
attended. He also testified to having been arrested by Bhutanese police in India in
December 1989 and imprisoned, interrogated, and beaten for two months. He was
released only after he agreed in writing to refrain from further political activity but was
re-arrested one week later in his village in Bhutan, and detained for a week at the police
station, released to spy for the government. Gurung asserted he then lived in India for
approximately two years, where he was arrested and detained, and arrested twice in Nepal
following political demonstrations, and detained for two to three hours each time.
Gurung admitted that he had obtained false documentation for a visa to enter the United
States.
The IJ found that Gurung lacked credibility and failed to establish his identity and
nationality, and denied Gurung’s applications for asylum and withholding of removal.
The BIA affirmed without opinion.
II.
We need not set forth the applicable legal propositions, as the parties are well
aware of them. In finding Gurung incredible, the IJ noted the false letter purportedly
from the UNHCR, the false documents Gurung obtained to enter the United States, and
statements in support of Gurung from individuals who had obtained these false
documents. The IJ further found that it is “implausible” that the Bhutanese government
would consider Gurung to be a threat, given that his main action against the government
was a letter he published in a newspaper criticizing the state of repair of a school in 1989.
3
In addition, the IJ found indication that the newspaper clipping Gurung submitted as
evidence was a fabrication. Also, the IJ noted the possibility that Gurung had been
arrested in India for immigration violations or a crime, as opposed to political activity.
Finally, the IJ highlighted vagueness and inconsistencies in Gurung’s testimony about his
identity and nationality, time spent in Nepal and India, and dates of his arrests.
The IJ’s adverse credibility finding was founded on evidence in the record, rather
than mere conjecture, and the questionable evidence highlighted by the IJ goes to the
heart of Gurung’s claim for asylum.2 Berishaj v. Ashcroft, 378 F.3d 314, 323 (3d Cir.
2004); Xie v. Ashcroft, 359 F.3d 239, 246 (3d Cir. 2004). Therefore, the IJ did not err in
concluding that Gurung had not established with credible evidence past persecution or a
well-founded fear of future persecution if he were to return to Bhutan.
III.
We conclude that substantial evidence supports the IJ’s adverse credibility
determination. Because the IJ found that Gurung had not successfully established an
asylum claim, the IJ did not err in concluding that Gurung necessarily did not meet the
burden for withholding of removal under the INA or CAT. Accordingly, we will deny
the petition for review.
2
Because this claim for asylum was filed prior to the
effective date of the REAL ID Act of 2005’s new credibility
determination standard (see 8 U.S.C. § 1158(b)(1)(B)(iii)), we
review the IJ’s finding under our case law which predated the
REAL ID Act. Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir.
2007).
4