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