Pakhrin v. Barr ( 2020 )

18-713
Pakhrin v. Barr
BIA
Poczter, IJ
A206 059 769
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 4th day of May, two thousand twenty.
5
6 PRESENT:
7 ROBERT D. SACK,
8 DEBRA ANN LIVINGSTON,
9 JOSEPH F. BIANCO,
10 Circuit Judges.
11 _____________________________________
12
13 JETHI MAYA PAKHRIN, AKA TIL
14 KUMARI JOSHI,
15 Petitioner,
16
17 v. 18-713
18 NAC
19 WILLIAM P. BARR, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Khagendra Gharti-Chhetry, New
25 York, NY.
26
27 FOR RESPONDENT: Joseph F. Hunt, Assistant
28 Attorney General; Mary Jane
29 Candaux, Assistant Director;
30 Michael C. Heyse, Trial Attorney,
31 Office of Immigration Litigation,
32 United States Department of
33 Justice, 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 Jethi Maya Pakhrin, a native and citizen of
6 Nepal, seeks review of a February 22, 2018, decision of the
7 BIA affirming a June 16, 2017, decision of an Immigration
8 Judge (“IJ”) denying her application for asylum, withholding
9 of removal, and relief under the Convention Against Torture
10 (“CAT”). In re Jethi Maya Pakhrin, No. A206 059 769 (B.I.A.
11 Feb. 22, 2018), aff’g No. A206 059 769 (Immig. Ct. N.Y. City
12 June 16, 2017). We assume the parties’ familiarity with the
13 underlying facts and procedural history.
14 Under the circumstances, we have reviewed the IJ’s and
15 BIA’s decisions without considering the IJ’s denial of asylum
16 as untimely because the BIA declined to rely on that finding
17 in dismissing Pakhrin's appeal. See Xue Hong Yang v. U.S.
18 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The
19 applicable standards of review are well established. See
20 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d
21 67, 76 (2d Cir. 2018).
22 “Considering the totality of the circumstances, and all
23 relevant factors, a trier of fact may base a credibility
2
1 determination on . . . the consistency between the
2 applicant’s or witness’s written and oral statements . . . ,
3 the internal consistency of each such statement, the
4 consistency of such statements with other evidence of
5 record . . . without regard to whether an inconsistency,
6 inaccuracy, or falsehood goes to the heart of the applicant’s
7 claim, or any other relevant factor.” 8 U.S.C.
8 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
9 163-64 (2d Cir. 2008). Substantial evidence supports the
10 agency’s determination that Pakhrin was not credible as to
11 her claim that Maoists attacked her in Nepal in 2005 and
12 attacked her son in 2013 because of her refusal to support
13 their cause and her membership in the National Democratic
14 Party.
15 The agency reasonably relied on the fact that Pakhrin’s
16 statements regarding whether she received stitches after
17 being attacked were inconsistent and continuously changing,
18 and that her evidence regarding her activities for the
19 National Democratic Party was internally inconsistent. See
20 8 U.S.C. § 1158(b)(1)(B)(iii). She did not provide
21 compelling explanations for these inconsistencies. See
22 Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A
23 petitioner must do more than offer a plausible explanation
3
1 for his inconsistent statements to secure relief; he must
2 demonstrate that a reasonable fact-finder would be compelled
3 to credit his testimony.” (internal quotation marks
4 omitted)).
5 Having questioned Pakhrin’s credibility, it was
6 reasonable for the agency further to rely on her failure to
7 rehabilitate her testimony with reliable corroborating
8 evidence. “An applicant’s failure to corroborate his or her
9 testimony may bear on credibility, because the absence of
10 corroboration in general makes an applicant unable to
11 rehabilitate testimony that has already been called into
12 question.” Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.
13 2007). The agency did not err in declining to credit unsworn
14 letters purportedly written by Pakhrin’s sons because Pakhrin
15 failed to provide evidence that she was related to the authors
16 and, if related, they were interested witnesses who were not
17 subject to cross-examination. See Y.C. v. Holder, 741 F.3d
18 324, 332 (2d Cir. 2013) (“We generally defer to the agency’s
19 evaluation of the weight to be afforded an applicant’s
20 documentary evidence.”); see also In re H-L-H- & Z-Y-Z-, 25
21 I. & N. Dec. 209, 215 (B.I.A. 2010) (finding that letters
22 from alien’s friends and family were insufficient to provide
23 substantial support for alien’s claims because they were from
4
1 interested witnesses not subject to cross-examination),
2 overruled on other grounds by Hui Lin Huang v. Holder, 677
3 F.3d 130, 133–38 (2d Cir. 2012). We further find no error
4 in the agency declining to credit a threatening letter
5 purportedly from Maoists that does not mention Pakhrin by
6 name or a handwritten, partially illegible hospital discharge
7 slip. See Y.C., 741 F.3d at 332.
8 Given Pakhrin’s inconsistent evidence and insufficient
9 corroboration, the agency’s adverse credibility determination
10 is supported by substantial evidence. See 8 U.S.C.
11 § 1158(b)(1)(B)(iii). That determination was dispositive of
12 asylum, withholding of removal, and CAT relief because all
13 three claims were based on the same factual predicate. See
14 Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
15 For the foregoing reasons, the petition for review is
16 DENIED. As we have completed our review, any stay of removal
17 that the Court previously granted in this petition is VACATED,
18 and any pending motion for a stay of removal in this petition
19 is DISMISSED as moot. Any pending request for oral argument
20 in this petition is DENIED in accordance with Federal Rule of
21
5
1 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
2 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe
5 Clerk of Court
6