BK v. Barr ( 2020 )

18-1138
BK v. Barr
BIA
Christensen, IJ
A202 125 042
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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 13th day of October, two thousand twenty.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 RAYMOND J. LOHIER, JR.,
9 MICHAEL H. PARK,
10 Circuit Judges.
11 _____________________________________
12
13 B HIRIRA BK,
14 Petitioner,
15
16 v. 18-1138
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Khagendra Gharti-Chhetry, New
24 York, NY.
25
26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
27 General; Sabatino F. Leo, Senior
1 Litigation Counsel; Linda Y.
2 Cheng, Trial 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 B Hirira BK, a native and citizen of Nepal,
11 seeks review of a March 19, 2018 decision of the BIA
12 affirming a June 26, 2017 decision of an Immigration Judge
13 (“IJ”) denying BK’s application for asylum, withholding of
14 removal, and relief under the Convention Against Torture
15 (“CAT”). In re B Hirira BK, No. A 202 125 042 (B.I.A. Mar.
16 19, 2018), aff’g No. A 202 125 042 (Immig. Ct. N.Y.C. Jun.
17 26, 2017). We assume the parties’ familiarity with the
18 underlying facts and procedural history.
19 Under the circumstances of this case, we consider both
20 the IJ’s and the BIA’s decisions. See Yun-Zui Guan v.
21 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). We review the
22 agency’s adverse credibility determination for substantial
23 evidence. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.
24 Sessions, 891 F.3d 67, 76 (2d Cir. 2018). “Considering the
2
1 totality of the circumstances, and all relevant factors, a
2 trier of fact may base a credibility determination on the
3 demeanor, candor, or responsiveness of the applicant . . . ,
4 the consistency between the applicant’s . . . written and
5 oral statements . . . , the internal consistency of each
6 such statement, the consistency of such statements with
7 other evidence of record . . . without regard to whether an
8 inconsistency, inaccuracy, or falsehood goes to the heart of
9 the applicant’s claim, or any other relevant factor.” 8
10 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
11 credibility determination unless, from the totality of the
12 circumstances, it is plain that no reasonable fact-finder
13 could make such an adverse credibility ruling.” Xiu Xia Lin
14 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong
15 Fei Gao, 891 F.3d at 76. The adverse credibility
16 determination is supported by substantial evidence.
17 The agency reasonably relied on discrepancies BK’s
18 testimony, his prior statements, and his documentary
19 evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii). For example,
20 BK gave inconsistent testimony about the chronology of
21 events. He alternatively alleged that he fled his village
22 for Kathmandu in November 2013 after the Maoists attacked
3
1 him at his home, or that he fled in April 2014; that he
2 stayed in Kathmandu for two or three months, for six months ,
3 or for one month before going to Qatar; that he returned to
4 his village five or six times after fleeing, or that he
5 never returned; and that he stopped working after the
6 Maoists attacked him, or that he continued to work after he
7 fled to Kathmandu.
8 The only explanation BK provided for these
9 inconsistencies is that he had a poor memory and that this
10 may relate to the Maoists’ attacks. The IJ was not required
11 to accept this explanation because BK was able to provide a
12 specific chronology of events in his application. See
13 Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A
14 petitioner must do more than offer a plausible explanation
15 for his inconsistent statements to secure relief; he must
16 demonstrate that a reasonable fact-finder would be compelled
17 to credit his testimony.” (internal quotation marks
18 omitted)).
19 The adverse credibility determination is bolstered by
20 inconsistencies between BK’s statements and his documentary
21 evidence, as well as by lack of reliable corroboration. The
22 IJ reasonably found that BK’s evidence omitted key events
4
1 and contradicted his testimony. See Biao Yang v. Gonzales,
2 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s failure to
3 corroborate his or her testimony may bear on credibility,
4 because the absence of corroboration in general makes an
5 applicant unable to rehabilitate testimony that has already
6 been called into question.”). For example, BK’s wife’s
7 letter does not mention that she was harmed, but BK
8 testified that she was severely beaten when the Maoists came
9 to his home. Also, a letter from a leader of the Rastriya
10 Prajatantra Party, with which BK was affiliated, reflects
11 that the leader was aware of BK’s problems with the Maoists.
12 But BK testified inconsistently both that he told the party
13 about the threats and attacks and that he never told them.
14 Even absent these inconsistencies, we defer to the the
15 agency’s decision to give little weight to BK’s documentary
16 evidence—documents and letters from Nepal—because the
17 documents were not authenticated and the authors were not
18 available for cross-examination. See Y.C. v. Holder, 741
19 F.3d 324, 332 (2d Cir. 2013) (“We generally defer to the
20 agency’s evaluation of the weight to be afforded an
21 applicant’s documentary evidence.”); see also In re H-L-H- &
22 Z-Y-Z-, 25 I. & N. Dec. 209, 214 n.5, 215 (BIA 2010)
5
1 (finding that unsworn letters from friends and family did
2 not provide substantial support for claims because they were
3 from interested witnesses not subject to cross-examination
4 and noting that the “failure to attempt to prove the
5 authenticity of a document through . . . any . . . means is
6 significant”), overruled on other grounds by Hui Lin Huang
7 v. Holder, 677 F.3d 130, 133-38 (2d Cir. 2012).
8 Given the inconsistencies and the lack of reliable
9 corroboration, the agency’s adverse credibility
10 determination is supported by substantial evidence. See Xiu
11 Xia Lin, 534 F.3d at 167. Contrary to BK’s argument that
12 the agency should have independently analyzed his CAT claim,
13 the adverse credibility determination is dispositive of
14 asylum, withholding of removal, and CAT relief because all
15 three claims are based on the same factual predicate. See
16 Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
17 For the foregoing reasons, the petition for review is
18 DENIED. All pending motions and applications are DENIED and
19 stays VACATED.
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe,
22 Clerk of Court
6