Gurung v. Barr ( 2020 )

18-3762
Gurung v. Barr
BIA
Loprest, IJ
A 208 192 814
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 17th day of December, two thousand twenty.
5
6 PRESENT:
7 DENNIS JACOBS,
8 JOSÉ A. CABRANES,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 GOPAL JANG GURUNG,
14 Petitioner,
15
16 v. 18-3762
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Khagendra Gharti Chhetry, Esq.,
24 New York, NY.
25
26 FOR RESPONDENT: Jeffrey Bossert Clark, Acting
27 Assistant Attorney General;
28 Jessica E. Burns, Senior
1 Litigation Counsel; Edward C.
2 Durant, Attorney, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington, DC.
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Gopal Jang Gurung, a native and citizen of
11 Nepal, seeks review of a November 29, 2018, decision of the
12 BIA affirming an October 16, 2017, decision of an Immigration
13 Judge (“IJ”) denying Gurung’s application for asylum,
14 withholding of removal, and relief under the Convention
15 Against Torture (“CAT”). In re Gopal Jang Gurung, No. A 208
16 192 814 (B.I.A. Nov. 29, 2018), aff’g No. A 208 192 814
17 (Immig. Ct. N.Y. City Oct. 16, 2017). We assume the parties’
18 familiarity with the underlying facts and procedural history.
19 We have reviewed the IJ’s decision as modified by the
20 BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
21 520, 522 (2d Cir. 2005). The applicable standards of review
22 are well established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei
23 Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing
24 adverse credibility determination under a substantial
2
1 evidence standard).
2 “Considering the totality of the circumstances, and all
3 relevant factors, a trier of fact may base a credibility
4 determination on . . . the consistency between the applicant’s
5 or witness’s written and oral statements . . . , the internal
6 consistency of each such statement, the consistency of such
7 statements with other evidence of record . . . and any
8 inaccuracies or falsehoods in such statements, without regard
9 to whether an inconsistency, inaccuracy, or falsehood goes to
10 the heart of the applicant’s claim, or any other relevant
11 factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to
12 an IJ’s credibility determination unless, from the totality
13 of the circumstances, it is plain that no reasonable fact-
14 finder could make such an adverse credibility ruling.” Xiu
15 Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord
16 Hong Fei Gao, 891 F.3d at 76.
17 Here, the agency relied on four findings to support its
18 adverse credibility determination, one of which—an
19 inconsistency regarding threats Gurung received—was in error.
20 Regarding the number of threats Gurung received, the IJ did
21 not consider that Gurung was answering a question
22 specifically about the time after he arrived in Kathmandu or
3
1 his later testimony on cross-examination that he was
2 threatened a total of three times. See Hong Fei Gao, 891
3 F.3d at 76 (substantial evidence requires the findings be
4 “supported by reasonable, substantial and probative evidence
5 in the record when considered as a whole”). Despite this
6 error, the other three findings discussed below—two
7 inconsistencies and one omission—provide substantial evidence
8 for the adverse credibility determination. See Xiu Xia Lin,
9 534 F.3d at 167. Accordingly, remand for further
10 consideration would be futile. Lianping Li v. Lynch, 839
11 F.3d 144, 149–50 (2d Cir. 2016) (holding that remand may be
12 futile where error-free findings provide substantial evidence
13 for the adverse credibility determination such that it is
14 clear the agency would reach the same decision on remand).
15 First, the agency reasonably relied on an inconsistency
16 regarding when Gurung joined the Nepali Congress Party
17 (“NCP”). Gurung testified he joined the NCP in the year 2070
18 of the Nepali calendar, or February 2014. However, his
19 written statement states that he joined the NCP “in February
20 2013 (Magh 1969)” and that his first encounter with the
21 Maoists occurred in January 2014. Gurung’s testimony that
22 he joined in February 2014 was also internally inconsistent
4
1 with his later testimony that he started having problems with
2 Maoists prior to that time. The agency’s reliance on this
3 inconsistency was reasonable as it concerned the central
4 issue of when he became politically active. See 8 U.S.C.
5 § 1158(b)(1)(B)(iii); Hong Fei Gao, 891 F.3d at 76.
6 Second, the agency reasonably relied on inconsistent
7 accounts of where the second beating occurred. Gurung
8 alternately stated that Maoists beat him while he was taking
9 care of his goats in his village, or when he was 35 minutes
10 away from his house, or while he was in the jungle. The IJ’s
11 reliance on this inconsistency was reasonable because it
12 related to the location of one of only two alleged beatings
13 and implicated questions about how his attackers located him
14 or whether there would have been witnesses. See Hong Fei
15 Gao, 891 F.3d at 77; Xian Tuan Ye v. Dep’t of Homeland Sec.,
16 446 F.3d 289, 295 (2d Cir. 2006) (holding that “material
17 inconsistency in an aspect of [the] story that served as an
18 example of the very persecution from which [petitioner]
19 sought asylum . . . afforded substantial evidence to support
20 the adverse credibility finding” (internal citation and
21 quotation marks omitted)). Gurung’s current explanation that
22 he could not remember does not compel a contrary conclusion.
5
1 See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A
2 petitioner must do more than offer a plausible explanation
3 for his inconsistent statements to secure relief; he must
4 demonstrate that a reasonable fact-finder would be compelled
5 to credit his testimony.” (internal quotation marks
6 omitted)).
7 Third, the agency reasonably relied on Gurung’s
8 testimonial omission that Maoists beat his wife so badly that
9 she needed hospital treatment. Gurung wrote in his statement
10 that Maoists “got fury and beat [his] wife very mercilessly”
11 and neighbors took her to the hospital, but he omitted any
12 physical harm when testifying about this incident—stating
13 only that they threatened her and demanded money. While
14 omissions are generally less probative than inconsistencies,
15 Gurung’s omission is essentially a different description of
16 a serious event and one that goes to the heart of his claim
17 that the Maoists continue to seek him out and would harm him
18 if he returned. See Hong Fei Gao, 891 F.3d at 78–79 (to
19 assess probative value of omission, IJ should consider
20 whether reasonable, credible applicant would have disclosed
21 the information). Because this incident went directly to his
22 fear of future harm, his explanation that it occurred after
6
1 he left Nepal is not compelling, particularly as he deemed it
2 important enough to mention in his application. Majidi, 430
3 F.3d at 80–81.
4 Given these inconsistencies and the omission that relate
5 to the timing of Gurung’s political activities, the details
6 of one of two attacks, and whether his wife suffered physical
7 harm from people seeking him out, the adverse credibility
8 determination is supported by substantial evidence. See
9 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.
10 The adverse credibility determination is dispositive of
11 asylum, withholding of removal, and CAT relief because all
12 three forms of relief are based on the same factual predicate.
13 See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
14 For the foregoing reasons, the petition for review is
15 DENIED. All pending motions and applications are DENIED and
16 stays VACATED.
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe,
19 Clerk of Court
20
7