Bhattarai v. Barr ( 2020 )

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