Bohara v. Whitaker ( 2019 )

17-1005
Bohara v. Whitaker
BIA
Poczter, IJ
A206 475 735
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 25th day of January, two thousand nineteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 DENNY CHIN,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 RAM KRISHNA BOHARA,
14 Petitioner,
15
16 v. 17-1005
17 NAC
18 MATTHEW G. WHITAKER,
19 ACTING UNITED STATES ATTORNEY
20 GENERAL,
21 Respondent.
22 _____________________________________
23
24
1 FOR PETITIONER: Khagendra Gharti-Chhetry, New
2 York, NY.
3
4 FOR RESPONDENT: Chad A. Readler, Principal
5 Deputy Assistant Attorney
6 General; Cindy S. Ferrier,
7 Assistant Director; Surell
8 Brady, Trial Attorney, Office of
9 Immigration Litigation, United
10 States Department of Justice,
11 Washington, DC.
12
13 UPON DUE CONSIDERATION of this petition for review of a
14 Board of Immigration Appeals (“BIA”) decision, it is hereby
15 ORDERED, ADJUDGED, AND DECREED that the petition for review
16 is DENIED.
17 Petitioner Ram Krishna Bohara, a native and citizen of
18 Nepal, seeks review of a March 9, 2017, decision of the BIA
19 affirming an August 2, 2016, decision of an Immigration Judge
20 (“IJ”) denying Bohara’s application for asylum, withholding
21 of removal, and relief under the Convention Against Torture
22 (“CAT”). In re Ram Krishna Bohara, No. A206 475 735 (B.I.A.
23 A.K. Marsh. 9, 2017), aff’g No. A206 475 735 (Immig. Ct. N.Y. City
24 Aug. 2, 2016). We assume the parties’ familiarity with the
25 underlying facts and procedural history in this case.
26 Under the circumstances of this case, we have reviewed
27 the IJ’s decision as the final agency decision. Shunfu Li v.
28 Mukasey, 529 F.3d 141, 146 (2d Cir. 2008). The applicable
2
1 standards of review are well established. See 8 U.S.C.
2 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-
3 66 (2d Cir. 2008).
4 The governing REAL ID Act credibility standard provides
5 that the agency must “[c]onsider[] the totality of the
6 circumstances,” and may base a credibility finding on
7 inconsistencies or omissions in his or his witness’s
8 statements, “without regard to whether” they go “to the
9 heart of the applicant’s claim.” 8 U.S.C.
10 § 1158(b)(1)(B)(iii); accord Xiu Xia Lin, 534 F.3d at 163-
11 64, 166-67. “[E]ven where an IJ relies on discrepancies or
12 lacunae that, if taken separately, concern matters
13 collateral or ancillary to the claim, the cumulative effect
14 may nevertheless be deemed consequential by the fact-
15 finder.” Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir.
16 2006) (internal quotation marks and citation omitted). “We
17 defer . . . to an IJ’s credibility determination
18 unless . . . it is plain that no reasonable fact-finder
19 could make such an adverse credibility ruling.” Xiu Xia
20 Lin, 534 F.3d at 167. See also Hong Fei Gao v. Sessions,
21 891 F.3d 67, 77 (2d Cir. 2018). For the reasons that
3
1 follow, we conclude that substantial evidence supports the
2 agency’s credibility ruling.
3 First, the agency reasonably relied on inconsistency
4 between Bohara’s testimony and evidence concerning his one
5 alleged physical altercation with Maoists. Id. at 163-64.
6 Bohara’s application and testimony reflected that he was
7 slapped by one individual; however, a letter from the
8 Nepali Congress Party (“NCP”) stated that Maoists attacked
9 and injured him, and a letter from a NCP candidate stated
10 that Bohara was badly injured by Maoists. The agency was
11 not required to credit Bohara’s explanation—that he did not
12 know why the letters stated that was injured—because it did
13 not explain the inconsistencies. Majidi v. Gonzales, 430
14 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more than
15 offer a plausible explanation for his inconsistent
16 statements to secure relief; he must demonstrate that a
17 reasonable fact-finder would be compelled to credit his
18 testimony.” (internal quotation marks omitted)). The agency
19 also properly found these discrepancies significant because
20 they related to Bohara’s only allegation of past physical
21 harm. Xiu Xia Lin, 534 F.3d at 163-64.
4
1 Second, the agency reasonably relied on inconsistency
2 between Bohara’s testimony and evidence concerning when he
3 joined the NCP. Tu Lin, 446 F.3d at 402. Bohara testified
4 that he joined the NCP on August 19, 2006, but his party’s
5 letter stated that he joined on April 10, 2008. The agency
6 was not compelled to credit Bohara’s explanation that he
7 forgot when he joined the NCP. Majidi, 430 F.3d at 80.
8 Although a discrepancy in dates need not be fatal if “minor
9 and isolated,” Diallo v. INS, 232 F.3d 279, 288 (2d Cir.
10 2000), Bohara’s date discrepancy spanned nearly two years.
11 Moreover, Bohara’s credibility on this point was further
12 undermined by the fact that his party certificate had a
13 blank space for his membership date. See Xiu Xia Lin, 534
14 F.3d at 166-67 & n.3 (“An inconsistency and an omission
15 are . . . functionally equivalent” for credibility
16 purposes.).
17 Third, the agency reasonably relied on the inconsistency
18 between Bohara’s testimony and evidence concerning the
19 results of the 2013 constituent assembly elections. Id. at
20 163-64. Bohara’s testimony that Maoists won the elections
21 was contradicted by the country conditions evidence. After
22 initially testifying that the country conditions evidence was
5
1 wrong, Bohara explained that he forgot who won. The agency
2 reasonably rejected this explanation because Bohara
3 specifically testified that he worked on these elections.
4 Majidi, 430 F.3d at 80.
5 Fourth, the agency reasonably relied on inconsistency
6 between Bohara’s testimony and evidence concerning the date
7 of his father’s attack. Tu Lin, 446 F.3d at 402. Bohara
8 testified that Maoists attacked his father on November 25,
9 2015, but a letter from the police stated that the attack
10 occurred on December 7, 2015. The agency did not err in
11 rejecting Bohara’s explanation—that the date in the letter
12 was a mistake—because it was not compelling given the other
13 date discrepancies in the record. Majidi, 430 F.3d at 80.
14 While this inconsistency is minor, it nevertheless provides
15 additional support for the agency’s adverse credibility
16 ruling. Tu Lin, 446 F.3d at 402.
17 Given the foregoing inconsistencies, which call into
18 question Bohara’s sole allegation of past physical harm and
19 whether he supported the NCP, the “totality of the
20 circumstances” supports the agency’s adverse credibility
21 determination. Xiu Xia Lin, 534 F.3d at 167. The
22 credibility determination is dispositive of asylum,
6
1 withholding of removal, and CAT relief because all three
2 claims are based on the same factual predicate. See Paul v.
3 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
4 For the foregoing reasons, the petition for review is
5 DENIED.
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe
8 Clerk of Court
7