Lama v. Sessions ( 2018 )

16-2816
Lama v. Sessions
BIA
Poczter, IJ
A206 567 088
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 24th day of April, two thousand eighteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 DENNIS JACOBS,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 BIR BAHADUR LAMA,
14 Petitioner,
15
16 v. 16-2816
17 NAC
18
19 JEFFERSON B. SESSIONS III,
20 UNITED STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Stuart Altman, New York, NY.
25
26 FOR RESPONDENT: Chad A. Readler, Acting Assistant
27 Attorney General; Erica B. Miles,
28 Senior Litigation Counsel; Enitan
29 O. Otunla, Trial Attorney, 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
4 is DENIED.
5 Petitioner Bir Bahadur Lama, a native and citizen of
6 Nepal, seeks review of a July 29, 2016, decision of the BIA
7 affirming a June 15, 2015, decision of an Immigration Judge
8 (“IJ”) denying Lama’s application for asylum, withholding
9 of removal, and relief under the Convention Against Torture
10 (“CAT”). In re Bir Bahadur Lama, No. A206 567 088 (B.I.A.
11 July 29, 2016), aff’g No. A206 567 088 (Immig. Ct. N.Y.
12 City June 15, 2015). We assume the parties’ familiarity
13 with the underlying facts and procedural history in this
14 case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as modified by the BIA, i.e., excluding
17 the IJ’s internal relocation finding and reliance on Lama’s
18 asylum interview. See Xue Hong Yang v. U.S. Dep’t of
19 Justice, 426 F.3d 520, 522 (2d Cir. 2005). The applicable
20 standards of review are well established. See 8 U.S.C.
21 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-
22 66 (2d Cir. 2008).
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 or
6 omissions in his or his witness’s statements, “without
7 regard to whether” they go “to the heart of the applicant’s
8 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534
9 F.3d at 163-64, 166-67. “A petitioner must do more than
10 offer a plausible explanation for his inconsistent
11 statements to secure relief; he must demonstrate that a
12 reasonable fact-finder would be compelled to credit his
13 testimony.” Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.
14 2005) (internal quotation marks and emphasis omitted). “We
15 defer . . . to an IJ’s credibility determination unless . .
16 . it is plain that no reasonable fact-finder could make
17 such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d
18 at 167. For the reasons that follow, we conclude that
19 substantial evidence supports the agency’s finding that
20 Lama was not credible.
21 The agency reasonably based the credibility
22 determination on Lama’s internally inconsistent testimony
3
1 and inconsistency between his testimony and evidence about
2 when his father registered his wife’s death, particularly
3 as his wife’s death was central to his claim that he was
4 targeted by Maoists. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu
5 Xia Lin, 534 F.3d at 167 (“[A]n IJ may rely on any
6 inconsistency . . . in making an adverse credibility
7 determination as long as the ‘totality of the
8 circumstances’ establishes that an asylum applicant is not
9 credible.”). Lama initially testified that his father
10 reported his wife’s death when she died, but later
11 testified that his father did not. Lama’s explanation—that
12 his father initially just informed the village development
13 committee about the death—did not explain his inconsistent
14 testimony or clarify when the death was reported. In
15 addition, although Lama testified that his father obtained
16 his wife’s death certificate, the certificate itself
17 reflects that Lama provided the information on which it was
18 based. Lama’s explanation that his name appeared on the
19 death certificate only because he was the husband was not
20 compelling and also conflicted with the certificate.
21 The agency also reasonably relied on an omission from
22 Lama’s application, direct testimony, and father’s letter
4
1 that Maoists threatened him through his father not to
2 report his wife’s death. See Xiu Xia Lin, 534 F.3d at 166-
3 67 & n.3 (“An inconsistency and an omission
4 are . . . functionally equivalent” for credibility
5 purposes.). The agency was not required to credit Lama’s
6 explanations—that he omitted the threat because it was made
7 to his father and that his father did not know to mention
8 it in his letter—because Lama included other indirect
9 threats in his application and his father’s letter
10 mentioned relaying other threats. See Majidi, 430 F.3d at
11 80 (“A petitioner must do more than offer a plausible
12 explanation for his inconsistent statements to secure
13 relief, he must demonstrate that a reasonable fact-finder
14 would be compelled to credit his testimony (internal
15 quotation marks omitted)).
16 Finally, the credibility determination is bolstered by
17 the IJ’s observations of Lama’s demeanor and the absence of
18 sufficient corroborating evidence to rehabilitate his
19 testimony. See Chen v. U.S. Dep’t of Justice, 426 F.3d 104
20 (2d Cir. 2005) (“We give particular deference to
21 credibility determinations that are based on the
22 adjudicator’s observation of the applicant’s demeanor . . .
5
1 .”); Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.
2 2007) (”An applicant’s failure to corroborate his or her
3 testimony may bear on credibility . . . .”). The IJ’s
4 observation that Lama was nonresponsive and unwilling to
5 answer when confronted with inconsistencies on cross-
6 examination is reflected in the record, as evidenced by the
7 number of questions the government attorney had to ask to
8 learn how and when Lama obtained the death certificate.
9 See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109
10 (2d Cir. 2006) (“We can be still more confident in our
11 review of observations about an applicant’s demeanor where,
12 as here, they are supported by specific examples of
13 inconsistent testimony.”).
14 While Lama faults the IJ for ignoring corroborating
15 evidence, including his father’s letter and wife’s death
16 certificate, the record reflects the opposite. The IJ
17 explicitly considered the death certificate and Lama’s
18 father’s letter but, as noted above, discrepancies between
19 this evidence and Lama’s testimony created, rather than
20 resolved, credibility issues. And while the IJ did not
21 explicitly mention Lama’s medical records and letters from
22 the Nepali Congress Party and Maoists, the IJ stated that
6
1 she had considered all of the documents. Wei Guang Wang v.
2 Bd. of Immigration Appeals, 437 F.3d 270, 275 (2d Cir.
3 2006) (noting that the agency need not “expressly parse or
4 refute on the record each individual argument or piece of
5 evidence offered by the petitioner” (internal quotation
6 marks omitted)). Given other credibility problems, the
7 agency reasonably concluded that these documents did not
8 rehabilitate his testimony. See Y.C. v. Holder, 741 F.3d
9 324, 332 (2d Cir. 2013) (“We generally defer to the
10 agency’s evaluation of the weight to be afforded an
11 applicant’s documentary evidence.”).
12 Given the foregoing inconsistency, omission, demeanor,
13 and corroboration findings, we conclude that the adverse
14 credibility determination is supported by the “totality of
15 the circumstances.” Xiu Xia Lin, 534 F.3d at 167.
16 Contrary to Lama’s position, the credibility determination
17 is dispositive of asylum, withholding of removal, and CAT
18 relief because all three claims are based on the same
19 factual predicate. See Paul v. Gonzales, 444 F.3d 148,
20 156-57 (2d Cir. 2006).
21 For the foregoing reasons, the petition for review is
22 DENIED. As we have completed our review, any stay of removal
7
1 that the Court previously granted in this petition is VACATED,
2 and any pending motion for a stay of removal in this petition
3 is DISMISSED as moot. Any pending request for oral argument
4 in this petition is DENIED in accordance with Federal Rule of
5 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
6 34.1(b).
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk of Court
8