Kumar v. Lynch

15-3000
Kumar v. Lynch
BIA
Christensen, IJ
A201 106 372

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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 20th day of January, two thousand seventeen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 JOSÉ A. CABRANES,
9 RAYMOND J.LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 RAKESH KUMAR,
14 Petitioner,
15
16 v. 15-3000
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Amy Nussbaum Gell, New York, N.Y.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Anthony
27 C. Payne, Assistant Director;
28 Alexander J. Lutz, Trial Attorney;
29 Lilah R. Thompson, Law Clerk, Office
30 of Immigration Litigation, United
31 States Department of Justice,
32 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 Petitioner Rakesh Kumar, a native and citizen of India,

6 seeks review of a September 16, 2015, decision of the BIA,

7 affirming a September 18, 2014, decision of an Immigration Judge

8 (“IJ”) denying asylum, withholding of removal, and relief under

9 the Convention Against Torture (“CAT”). In re Rakesh Kumar,

10 No. A201 106 372 (B.I.A. Sept. 16, 2015), aff’g No. A201 106

11 372 (Immig. Ct. N.Y. City Sept. 18, 2014). We assume the

12 parties’ familiarity with the underlying facts and procedural

13 history in this case.

14 Under the circumstances of this case, we have reviewed both

15 the IJ’s and the BIA’s opinions “for the sake of completeness.”

16 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.

17 2006). The applicable standards of review are well

18 established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.

19 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). “Considering the

20 totality of the circumstances, and all relevant factors, a trier

21 of fact may base a credibility determination on . . . the

22 consistency between the applicant’s or witness’s written and

23 oral statements (whenever made and whether or not under oath,

2
1 and considering the circumstances under which the statements

2 were made), . . . without regard to whether an inconsistency,

3 inaccuracy, or falsehood goes to the heart of the applicant’s

4 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d

5 at 163-64. Substantial evidence supports the agency’s

6 determination that Kumar was not credible as to his claim that

7 he was persecuted in India on account of his membership in the

8 Shiromani Akali Dal Party.

9 The agency reasonably relied on several record

10 inconsistencies and omissions. See Xiu Xia Lin, 534 F.3d at

11 167. Kumar omitted from his asylum application his claim that

12 police beat him at a political rally in India, see id. at 166

13 n.3 (“[a]n inconsistency and an omission are . . . functionally

14 equivalent.”), and Kumar could not compellingly explain this

15 omission despite multiple opportunities to do so, see Majidi

16 v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005).* Furthermore,

17 Kumar’s testimony and supporting affidavits were inconsistent

18 regarding (1) whether he accompanied his father, village head,

19 and party leaders to report the first Congress Party attack he

* Although we do not consider Kumar’s explanation offered for
the first time here, see Lin Zhong v. U.S. Dep’t of Justice,
480 F.3d 104, 119-20 (2d Cir. 2007), we are doubtful that this
omission was immaterial as Kumar now contends and note that the
agency “may rely on any inconsistency or omission” regardless
of materiality so long as the adverse credibility determination
is supported by the totality of the circumstances, see Xiu Xia
Lin, 534 F.3d at 167.
3
1 purportedly suffered, (2) whether police threatened to detain

2 them should they return to report future attacks, and

3 (3) whether police had threatened his parents since his

4 departure from India. See Xiu Xia Lin, 534 F.3d at 167. Kumar

5 could not explain any of these inconsistencies. See Majidi,

6 430 F.3d at 80.

7 Having questioned Kumar’s credibility, the IJ reasonably

8 relied further on Kumar’s failure to rehabilitate his claim with

9 reliable corroborating evidence. “An applicant’s failure to

10 corroborate his or her testimony may bear on credibility,

11 because the absence of corroboration in general makes an

12 applicant unable to rehabilitate testimony that has already

13 been called into question.” Biao Yang v. Gonzales, 496 F.3d

14 268, 273 (2d Cir. 2007). As the IJ determined, many of Kumar’s

15 supporting affidavits were not credible because they were

16 inconsistent with Kumar’s testimony and with each other, see

17 8 U.S.C. § 1158(b)(1)(B)(iii), and alternatively were entitled

18 to little weight because the authors were not available for

19 cross-examination and some were interested parties, see Y.C.

20 v. Holder, 741 F.3d 324, 334 (2d Cir. 2013).

21 Given the inconsistencies and lack of credible

22 corroborating evidence, the agency’s adverse credibility

23 determination is supported by substantial evidence. 8 U.S.C.

4
1 § 1158(b)(1)(B)(iii). Contrary to Kumar’s position, that

2 determination is dispositive of asylum, withholding of removal,

3 and CAT relief because all three claims are based on the same

4 factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57

5 (2d Cir. 2006).

6 For the foregoing reasons, the petition for review is

7 DENIED. As we have completed our review, any stay of removal

8 that the Court previously granted in this petition is VACATED,

9 and any pending motion for a stay of removal in this petition

10 is DISMISSED as moot. Any pending request for oral argument

11 in this petition is DENIED in accordance with Federal Rule of

12 Appellate Procedure 34(a)(2), and Second Circuit Local Rule

13 34.1(b).

14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk

5