Gurung v. Sessions

16-511 Gurung v. Sessions BIA Vomacka, IJ A201 110 210 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 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 6th day of November, two thousand 5 seventeen. 6 7 PRESENT: 8 JOHN M. WALKER, JR., 9 REENA RAGGI, 10 CHRISTOPHER F. DRONEY, 11 Circuit Judges. 12 _____________________________________ 13 14 BIKASH GURUNG, 15 Petitioner, 16 17 v. 16-511 18 NAC 19 JEFFERSON B. SESSIONS III, 20 UNITED STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Stuart Altman, Law Office of 25 Stuart Altman, New York, N.Y. 26 27 FOR RESPONDENT: Benjamin C. Mizer, Principal 28 Deputy Assistant Attorney General; 29 Anthony P. Nicastro, Assistant 30 Director; Yanal H. Yousef, Trial 31 Attorney, Office of Immigration 1 Litigation, United States 2 Department of Justice, Washington, 3 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 Bikash Gurung, a native and citizen of Nepal, 10 seeks review of a January 27, 2016, decision of the BIA 11 affirming an August 21, 2014, decision of an Immigration Judge 12 (“IJ”) denying Gurung’s application for asylum, withholding 13 of removal, and relief under the Convention Against Torture 14 (“CAT”). In re Bikash Gurung, No. A201 110 210 (B.I.A. Jan. 15 27, 2016), aff’g No. A201 110 210 (Immig. Ct. N.Y. City Aug. 16 21, 2014). We assume the parties’ familiarity with the 17 underlying facts and procedural history in this case. 18 Under the circumstances of this case, we have reviewed 19 both the BIA’s and IJ’s decisions. See Yun-Zui Guan v. 20 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable 21 standards of review are well established. See 8 U.S.C. 22 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165- 23 66 (2d Cir. 2008). 24 2 1 The governing REAL ID Act credibility standard provides 2 that the agency must “[c]onsider[] the totality of the 3 circumstances,” and may base a credibility finding on an 4 applicant’s “demeanor, candor, or responsiveness,” the 5 plausibility of his account, and inconsistencies in his or 6 his witness’s statements, “without regard to whether” they 7 go “to the heart of the applicant’s claim.” 8 U.S.C. 8 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. “We 9 defer . . . to an IJ’s credibility determination unless, 10 from the totality of the circumstances, it is plain that no 11 reasonable fact-finder could make such an adverse 12 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. 13 Further, “[a] petitioner must do more than offer a 14 plausible explanation for his inconsistent statements to 15 secure relief; he must demonstrate that a reasonable fact- 16 finder would be compelled to credit his testimony.” Majidi 17 v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (internal 18 quotations marks omitted). For the reasons that follow, we 19 conclude that substantial evidence supports the agency’s 20 determination that Gurung was not credible. 21 First, the agency did not err by relying on Gurung’s 22 credible fear interview record. We have held that a credible 3 1 fear interview warrants “close examination” because it may 2 “be perceived as coercive” by the alien or fail to “elicit 3 all of the details supporting an asylum claim.” Ming Zhang 4 v. Holder, 585 F.3d 715, 724 (2d Cir. 2009). Nevertheless, 5 “[w]here the record of a credible fear interview displays the 6 hallmarks of reliability, it appropriately can be considered 7 in assessing an alien’s credibility.” Id. at 725. Some of 8 those hallmarks are that the interview was memorialized in a 9 typewritten document, was conducted through an interpreter, 10 and asked questions designed to elicit a possible asylum 11 claim. Id. The agency correctly observed that those 12 hallmarks were present here. A Nepalese interpreter was used. 13 The interviewer asked questions designed to elicit an asylum 14 and CAT claim (e.g., why Gurung left Nepal, why he feared the 15 Maoists, whether he was ever physically harmed, and whether 16 he feared anyone in the Nepalese government or anyone acting 17 with the consent of a public official). The questions and 18 answers were memorialized in a typewritten document. And at 19 no point did Gurung demonstrate difficulty answering the 20 interviewer’s questions. Although Gurung contends that his 21 interview record is unreliable because he was scared, we have 22 repeatedly “reject[ed] the notion that a petitioner’s claim 4 1 that []he was nervous and distracted during the credible fear 2 interview automatically undermines or negates its reliability 3 as a source of h[is] statements.” Id. Because the record of 4 the interview is reliable, the agency was entitled to consider 5 it in assessing Gurung’s credibility. 6 Second, the agency reasonably relied on the 7 inconsistencies among Gurung’s credible fear interview 8 statements, testimony, and asylum application about whether 9 he was kidnapped in Kathmandu in 2010. See Xiu Xia Lin, 534 10 F.3d at 163-64, 166 n.3. Gurung stated during his credible 11 fear interview that there was no real incident after the April 12 2008 attack; he also responded only that the Maoists 13 threatened his parents when asked if he had any problems in 14 Kathmandu. However, Gurung provided in his asylum 15 application and testimony that he was kidnapped by Maoists 16 from a hotel in Kathmandu in 2010, transported by van to a 17 safe house 45 minutes away, beaten with rods and kicked in 18 his face, and later woke up in the hospital. When confronted 19 with these discrepancies, Gurung responded that he could not 20 tell his full story during the interview because he was 21 anxious and fearful. The IJ was not compelled to accept this 22 explanation because Gurung gave detailed answers about the 5 1 other incidents with the Maoists during his interview and 2 this was the most serious incident. See Majidi, 430 F.3d at 3 80. 4 Third, the agency reasonably relied on the inconsistency 5 between Gurung’s credible fear interview statements and 6 testimony about whether he was threatened during the April 7 2008 attack. See Xiu Xia Lin, 534 F.3d at 163-64. Gurung 8 was asked during his credible fear interview whether his 9 attackers said anything while they were beating him, and he 10 responded: “[t]hey didn’t say a thing[,] all of a sudden they 11 came and attacked me.” Certified Administrative Record 12 (“CAR”) at 294. Gurung testified, however, that his attackers 13 told him that they were “going to kill [him] right here.” 14 Id. at 106. When asked about this discrepancy, Gurung 15 explained that he could not tell the whole story during his 16 interview and was not in his right mind at the time because 17 he was in a jail. The IJ reasonably rejected this explanation 18 because Gurung gave detailed answers throughout the interview 19 and did not indicate that he had trouble answering the 20 questions. See Majidi, 430 F.3d at 80. 21 Fourth, the agency reasonably relied on Gurung’s 22 testimonial inconsistencies regarding how his father obtained 6 1 the medical records that he submitted to the IJ. See Xiu Xia 2 Lin, 534 F.3d at 163-64. Gurung testified that he asked his 3 father for the medical records when he was preparing his 4 application and that his father subsequently obtained them 5 from the clinic where Gurung was treated. However, after the 6 government attorney expressed confusion as to why the records 7 contained receipts and medication prescriptions, which one 8 might expect to find in hospital discharge papers but not 9 copies of medical records obtained years’ later, Gurung 10 changed his testimony and stated that his father sent the 11 records from his home in Nepal and that there were no records 12 that his father needed to obtain from the clinic. When asked 13 about this discrepancy, Gurung explained that he meant that 14 this father brought the records with him from the medical 15 facilities and that he did not understand the earlier 16 question. The IJ was not compelled to accept this explanation 17 because it was inconsistent with Gurung’s prior testimony and 18 did not resolve the inconsistency. See Majidi, 430 F.3d at 19 80. 20 Fifth, the agency reasonably relied on the 21 inconsistencies between Gurung’s credible fear interview 22 statements and testimony regarding why he failed to report 7 1 any incident with the Maoists to the Nepalese police. 2 During his credible fear interview, Gurung stated that it 3 was “[b]ecause [he] was a worker of the party and [he] 4 didn’t seek help from the[] [police]” and that “[he] did 5 not go to seek out the protection of the police because 6 [he] was involved with the party matters.” CAR at 296. At 7 his hearing, however, Gurung testified that he did not 8 report the attacks to the police because the Maoists “would 9 [have] target[ed] [him] more” and there would have been 10 “more danger to [his] life.” Id. at 109-10, 114. When 11 asked to explain the discrepancy, Gurung responded that he 12 did not tell the full story during his interview and he was 13 not aware of what was going on. The IJ was not required to 14 credit this explanation, which did not compellingly resolve 15 the inconsistency. See Majidi, 430 F.3d at 80. 16 Finally, we reject Gurung’s argument that the IJ ignored 17 his corroborating letters from his father and friends and 18 documents that support his political party membership. See 19 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (An 20 applicant’s failure to corroborate testimony may bear on 21 credibility, either because the absence of particular 22 evidence is viewed as suspicious, or “because the absence of 8 1 corroboration in general makes an applicant unable to 2 rehabilitate testimony that has already been called into 3 question.”). The agency need not “expressly parse or refute 4 on the record each individual argument or piece of evidence 5 offered by the petitioner,” Wei Guang Wang v. Bd. of 6 Immigration Appeals, 437 F.3d 270, 275 (2d Cir. 2006) 7 (internal quotation marks omitted), and “we presume that an 8 IJ has taken into account all of the evidence before him, 9 unless the record compellingly suggests otherwise,” Xiao Ji 10 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d 11 Cir. 2006). Nevertheless, “[w]e also require some indication 12 that the IJ considered material evidence supporting a 13 petitioner’s claim.” Poradisova v. Gonzales, 420 F.3d 70, 77 14 (2d Cir. 2005). Here, while the IJ did not make a particular 15 determination as to the weight of every piece of Gurung’s 16 corroborating evidence, the IJ stated that he considered 17 Gurung’s evidence, observed that the letters were from 18 interested witnesses not subject to cross examination, and 19 concluded that Gurung did not provide sufficient 20 corroboration to rehabilitate his credibility. Gurung does 21 not address these conclusions, which were reasonable, and the 22 record contains sufficient indication that the IJ considered 9 1 Gurung’s corroborating evidence. See In re H-L-H- & Z-Y-Z-, 2 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (giving diminished 3 weight to letters from relatives because they were from 4 interested witnesses not subject to cross-examination), rev’d 5 on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d 6 Cir. 2012); Xiao Ji Chen, 471 F.3d at 337 n.17, 342 (observing 7 that the weight accorded to an applicant’s documentary 8 evidence lies largely within the discretion of the agency). 9 Given the foregoing inconsistencies among Gurung’s 10 testimony, asylum application, and credible fear interview 11 statements, the totality of the circumstances supports the 12 credibility ruling. Xiu Xia Lin, 534 F.3d at 165-66. A 13 reasonable adjudicator would not be compelled to conclude 14 otherwise. Id. at 167. And, despite Gurung’s protests 15 otherwise, the credibility finding is dispositive of asylum, 16 withholding of removal, and CAT relief because all three 17 claims are based on the same factual predicate. See Paul v. 18 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). 19 For the foregoing reasons, the petition for review is 20 DENIED. As we have completed our review, any stay of removal 21 that the Court previously granted in this petition is VACATED, 22 and any pending motion for a stay of removal in this petition 10 1 is DISMISSED as moot. Any pending request for oral argument 2 in this petition is DENIED in accordance with Federal Rule of 3 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 4 34.1(b). 5 FOR THE COURT: 6 Catherine O’Hagan Wolfe, Clerk 11