Bhattarai v. Barr ( 2020 )


Menu:
  •      19-2604
    Bhattarai v. Barr
    BIA
    Conroy, IJ
    A 206 561 825
    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 10th day of November, two thousand twenty.
    5
    6   PRESENT:
    7            RICHARD J. SULLIVAN,
    8            JOSEPH F. BIANCO,
    9            WILLIAM J. NARDINI,
    10                 Circuit Judges.
    11   _____________________________________
    12
    13   ASHOK BHATTARAI,
    14            Petitioner,
    15
    16                       v.                                  19-2604
    17                                                           NAC
    18   WILLIAM P. BARR, UNITED STATES
    19   ATTORNEY GENERAL,
    20            Respondent.
    21   _____________________________________
    22
    23   FOR PETITIONER:                     Dilli Raj Bhatta, Bhatta Law &
    24                                       Associates, New York, NY.
    25
    26   FOR RESPONDENT:                     Jeffrey Bossert Clark, Acting
    27                                       Assistant Attorney General;
    28                                       Anthony P. Nicastro, Assistant
    1                                      Director; Jenny C. Lee, Trial
    2                                      Attorney, Office of Immigration
    3                                      Litigation, United States
    4                                      Department of Justice, Washington,
    5                                      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 GRANTED.
    10         Petitioner Ashok Bhattarai, a native and citizen of
    11   Nepal, seeks review of a July 24, 2019 decision of the BIA
    12   affirming a February 1, 2018 decision of an Immigration Judge
    13   (“IJ”)       denying     Bhattarai’s        application     for     asylum,
    14   withholding     of     removal,    and   relief    under   the    Convention
    15   Against Torture (“CAT”).           In re Ashok Bhattarai, No. A206 561
    16   825 (B.I.A. July 24, 2019), aff’g No. A206 561 825 (Immig.
    17   Ct.   N.Y.    City     Feb.   1,   2018).     We   assume   the    parties’
    18   familiarity with the underlying facts and procedural history.
    19         We have reviewed both the BIA’s and IJ’s decisions.                See
    20   Yun-Zui Guan v. Gonzales, 
    432 F.3d 391
    , 394 (2d Cir. 2005).
    21   The applicable standards of review are well established.                See
    22   
    8 U.S.C. § 1252
    (b)(4)(B); Hong Fei Gao v. Sessions, 
    891 F.3d 23
       67, 76 (2d Cir. 2018).             “Considering the totality of the
    24   circumstances, and all relevant factors, a trier of fact may
    2
    1   base a credibility determination on . . . the consistency
    2   between     the    applicant’s      or       witness’s      written     and   oral
    3   statements . . . , the internal consistency of each such
    4   statement, [and] the consistency of such statements with
    5   other evidence of record . . . without regard to whether an
    6   inconsistency, inaccuracy, or falsehood goes to the heart of
    7   the applicant’s claim.”            
    8 U.S.C. § 1158
    (b)(1)(B)(iii).               We
    8   remand for further consideration because the IJ’s decision
    9   predated Hong Fei Gao, 891 F.3d at 79, and Gurung v. Barr,
    10   
    929 F.3d 56
    , 60 (2d Cir. 2019), and the agency relied on the
    11   type of omissions and language differences that we cautioned
    12   against in those cases.
    13          As   an    initial    matter,         we   conclude    that      Bhattarai
    14   sufficiently       exhausted       his       challenges      to   the    adverse
    15   credibility determination.           See Gill v. INS, 
    420 F.3d 82
    , 85-
    16   86 (2d Cir. 2005).          After the IJ issued his decision in this
    17   case, we issued two opinions that call his adverse credibility
    18   determination into question.                 First, in Hong Fei Gao, we
    19   emphasized that IJs should “distinguish between (1) omissions
    20   that arise merely because an applicant’s oral testimony is
    21   more    detailed    than     his   or    her      written    application,     and
    3
    1   (2) omissions        that    tend    to    show     that    an   applicant     has
    2   fabricated his or her claim.”                   891 F.3d at 82.       In Gurung,
    3   we held that “trivial differences in the wording of statements
    4   describing     the    same     event      are    not   sufficient     to    create
    5   inconsistencies.”           929 F.3d at 61.
    6       Here,       the         agency     relied          on   three      purported
    7   inconsistencies, which do not provide substantial evidence
    8   for the adverse credibility determination.                       First, the IJ
    9   found that Bhattarai’s testimony — that he was hit, slapped,
    10   and kicked during a March 28, 2012 incident, resulting in
    11   bruises and a swollen cheek and forehead — was inconsistent
    12   with his written statement that was attacked by seven to eight
    13   people   and   ran     away    when    they       pulled    weapons   out    of   a
    14   backpack.      The information elicited in testimony regarding
    15   being hit and slapped was “supplementary, not contradictory.”
    16   Hong Fei Gao, 891 F.3d at 79.                 And in both accounts of this
    17   event, Bhattarai used the word attacked, which he also used
    18   to describe other incidents of physical harm and explained
    19   that he used that term because he believed being hit and
    20   slapped was an attack.               These “trivial differences in the
    21   wording of statements describing the same event are not
    4
    1   sufficient to create inconsistencies.”     Gurung, 929 F.3d at
    2   61.
    3         Second, the IJ found Bhattarai’s testimony was both
    4   internally inconsistent and inconsistent with his written
    5   statement regarding threatening phone calls he received from
    6   a Maoist group at his home in 2013.    Bhattarai testified on
    7   direct examination that, in January 2013, his father picked
    8   up the phone and was told that if he did not let Bhattarai
    9   join the Maoist group, Bhattarai’s life would be at risk and
    10   they would torture his father as well.         Bhattarai also
    11   testified that he and his family continued to receive threats
    12   on their landline home phone.      When asked on redirect to
    13   clarify who was threatened, he again stated that the callers
    14   said to his father:   “[Y]our son might lose his life and we
    15   will torture you.”    Certified Administrative Record (“CAR”)
    16   at 189.   Bhattarai then explained: “It was threats for me
    17   but my father was the one who had to listen to that.”      CAR
    18   at 189.   Bhattarai added that a majority of the threats his
    19   family received were for him.     While not completely clear,
    20   these accounts are not inconsistent.     Nor is the testimony
    21   inconsistent with his written statement.     He wrote that, in
    5
    1   2013, his father received a call in which threats were made
    2   to his father about Bhattarai.            Though Bhattarai did not
    3   explicitly write that the callers told his father he would be
    4   tortured as well, this later detail was “supplementary, not
    5   contradictory.”      Hong Fei Gao, 891 F.3d at 79.            Bhattarai’s
    6   written statement does not explicitly identify other threats
    7   against his family, but it notes that he told other members
    8   of his political group that the Maoists were threatening him
    9   and his family.       Again, there is no inconsistency, and any
    10   omission from his written statement of threats against others
    11   does    not     provide   substantial    evidence      for    an    adverse
    12   credibility determination where, as here, the application
    13   focused on more direct harm to the applicant.                See Hong Fei
    14   Gao, 891 F.3d at 77–79 (reiterating that applicant need not
    15   include all details in initial statements).
    16          Third, the IJ relied on an          omission in        Bhattarai’s
    17   written statement that he went to a medical clinic after an
    18   attack that occurred in January 2013.            Bhattarai testified
    19   that he went to the medical clinic, picked up a bandage, and
    20   went    home.     Although   Bhattarai    does   not    challenge     this
    21   inconsistency,       we   cannot   conclude      that        it    provides
    6
    1   substantial      evidence      for       the         adverse        credibility
    2   determination      because,      under         the     totality       of     the
    3   circumstances, such      an omission regarding procurement of
    4   medication after an attack has “little, if any, weight.”                     Id.
    5   at 81; see also Gurung, 929 F.3d at 62 (concluding that remand
    6   is futile only when “same decision is inevitable on remand”
    7   (quotation marks omitted)).
    8         Lastly, the IJ also found that                  Bhattarai failed to
    9   provide    corroborative       evidence         to      rehabilitate        his
    10   credibility because his mother, brother, and sister live in
    11   the   United    States   but   were      not    offered        as   witnesses.
    12   Although a failure to call witnesses or provide evidence may
    13   support    an     adverse      credibility           determination         where
    14   credibility is already in question, see Biao Yang v. Gonzales,
    15   
    496 F.3d 268
    , 273 (2d Cir. 2007), absent the inconsistency
    16   and omission findings, the failure to offer corroboration
    17   cannot alone support an adverse credibility determination,
    18   see Chuilu Liu v. Holder, 
    575 F.3d 193
    , 198 n.5 (2d Cir. 2009)
    19   (“[W]hile a failure to corroborate can suffice, without more,
    20   to support a finding that an alien has not met his burden of
    7
    1   proof, a failure to corroborate cannot, without more, support
    2   an adverse credibility determination.”).
    3       Given our intervening decisions and the errors noted
    4   above, we remand for additional consideration.    See Hong Fei
    5   Gao, 891 F.3d at 78–79; Gurung, 929 F.3d at 62.
    6       For the foregoing reasons, the petition for review is
    7   GRANTED, the BIA’s decision is VACATED, and the case is
    8   REMANDED for further proceedings.   All pending motions and
    9   applications are DENIED and stays VACATED.
    10
    11                               FOR THE COURT:
    12                               Catherine O’Hagan Wolfe,
    13                               Clerk of Court
    8