Ashish Sunuwar v. Attorney General United States ( 2021 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 20-2091
______________
ASHISH SUNUWAR,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A065-184-944)
Immigration Judge: John B. Carle
____________
Submitted Under Third Circuit L.A.R. 34.1(a):
January 26, 2021
Before: RESTREPO, BIBAS, and PORTER,
Circuit Judges.
(Filed: February 25, 2021)
____________
Anser Ahmad
Ahmad & Associates
6888 Elm Street, Suite 101
McLean, VA 22101
Counsel for Petitioner Ashish Sunuwar
Lindsay B. Glauner
Imran R. Zaidi
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, DC 20044
Counsel for Respondent Attorney General
United States of America
____________
OPINION OF THE COURT
____________
PORTER, Circuit Judge.
Ashish Sunuwar immigrated to the United States from
Nepal in 2017. On the night of July 2, 2018, he beat and stran-
gled his wife, Rima Sunuwar.1 Sunuwar was ultimately con-
victed of strangulation and contempt for violating a protection-
from-abuse order. The Department of Homeland Security
(“DHS”) initiated removal proceedings.
1
For clarity, references to “Sunuwar” refer to the petitioner,
and references to “Rima” refer to the petitioner’s wife.
2
Sunuwar contested the DHS’s charges of removability
and, as relief from removal, sought asylum, withholding of
removal under the Immigration and Nationality Act (“INA”),
and withholding and deferral of removal under the Convention
Against Torture (“CAT”). Sunuwar did not prevail. The
agency (1) determined that Sunuwar is deportable; (2) deter-
mined that he committed a particularly serious crime that dis-
qualifies him from all forms of relief except deferral of removal
under the CAT; and (3) denied him deferral of removal under
the CAT based on an adverse credibility finding.
Sunuwar petitions for review, challenging these three
aspects of the agency’s decision. We conclude that there was
no error in the deportability and particularly serious crime
determinations, and that the agency’s adverse credibility find-
ing is supported by substantial evidence. So we will deny the
petition.
I
A
In 2017, Sunuwar was admitted to the United States as
a lawful permanent resident based on a diversity visa. On July
3, 2018, he was arrested and charged with first-degree aggra-
vated assault, first-degree strangulation, and terroristic threats
in the Court of Common Pleas of Dauphin County,
Pennsylvania. The criminal complaint included an affidavit of
probable cause prepared by Officer Blake Iorio, who was dis-
patched to the Sunuwar residence on the morning of the arrest.
According to the affidavit of probable cause, Officer
Iorio observed that Rima had multiple injuries, including a
“swollen and completely bloodshot” eye, “multiple large
3
bruises on both her arms and knees,” additional “bruising
around her neck,” and “scratch marks on her chin.” A.R. 405.
Rima told Officer Iorio that Sunuwar continually beat her
throughout the night with his fists and a wooden stick. At one
point, Sunuwar dragged Rima from the living room to the bed-
room, pushed her up against a wall and started to choke her
with his hands. He took Rima’s cell phone and jammed it into
her mouth, causing her to bleed. When Rima tried to scream,
Sunuwar removed her shirt and shoved it down her throat.
Sunuwar then dragged Rima into a closet and struck her head
against a shelf until she lost consciousness. When she revived,
he held a kitchen knife to her throat and vowed to kill her if she
went to the police.
The day of Sunuwar’s arrest, Rima filed a petition for
emergency relief from abuse. She alleged that Sunuwar had
beaten her repeatedly over the previous six weeks, including
when she refused his sexual advances. The Dauphin County
Night Court issued an order granting emergency protection
from abuse that same day. The protection order required
Sunuwar to, among other things, refrain from “abusing,” “har-
assing,” or “contacting” Rima. A.R. 437.
Sunuwar later pleaded guilty to contempt under 23 Pa.
Cons. Stat. § 6114(a) for disobeying the protection order. The
affidavit of probable cause in support of this charge stated that
Sunuwar sent four letters to Rima from detention, including
one written on the back of a notice served on Sunuwar stating
the conditions of the order.
In May 2019, Sunuwar pleaded guilty to first-degree
strangulation under 18 Pa. Cons. Stat. § 2718(a) for his attack
on his wife. He was sentenced to a term of imprisonment of
11.5 to 23 months. Section 2718(a) prohibits “knowingly or
4
intentionally imped[ing] the breathing or circulation of the
blood of another person by: (1) applying pressure to the throat
or neck; or (2) blocking the nose and mouth of the person.” As
relevant here, a strangulation offense is classified as a felony
in the first degree if the defendant was under an active protec-
tion order at the time of the offense or used an instrument of
crime in committing the offense. 18 Pa. Cons. Stat.
§ 2718(d)(3).
B
The DHS placed Sunuwar in removal proceedings. The
DHS alleged that Sunuwar had been convicted of strangula-
tion, and that a court determined that he violated part of an
order involving protection against credible threats of violence,
repeated harassment, or bodily injury to the person for whom
the order was issued. Based on this conduct, the DHS charged
Sunuwar with removability as an alien who was convicted of
an aggravated felony, see 8 U.S.C. § 1227(a)(2)(A)(iii), a
crime of domestic violence, see id. § 1227(a)(2)(E)(i), and a
crime involving moral turpitude, see id. § 1227(a)(2)(A)(i),
and as an alien who was found to have violated a protection
order, see id. § 1227(a)(2)(E)(ii).
Sunuwar denied the removability charges. As relief
from removal, he applied for asylum, withholding of removal
under the INA, and CAT protection.2 He alleged in his appli-
2
To be eligible for a discretionary grant of asylum, an alien
must demonstrate that he is unable or unwilling to return to his
home country “because of persecution or a well-founded fear
of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.”
5
cation that, if he were deported, “[t]he Maoist party [in Nepal]
would try to recruit [him] because they are at war with Nepal
and if [he] did not join them [he] would be kidnapped, tortured
or killed.” A.R. 329. He did not allege that he had experienced
any past harm in Nepal.
C
Sunuwar testified before an immigration judge (“IJ”) in
support of his application. At the outset of the hearing, he
amended his application to change the answer from “no” to
“yes” in response to whether he had previously been harmed
or mistreated in Nepal, but still did not specifically identify or
describe any past harm. Sunuwar testified that, when he was
about thirteen or fourteen years old (which would have been
around 2006 or 2007), he was kidnapped by Maoists and held
8 U.S.C. § 1101(a)(42)(A); see also id. § 1158(b); A.A. v. Att’y
Gen., 973 F.3d 171, 177 (3d Cir. 2020).
To be granted withholding of removal under the INA, an alien
must meet the heavier burden of demonstrating a clear
probability of persecution on account of race, religion,
nationality, membership in a particular social group, or
political opinion if he is removed. See 8 U.S.C.
§ 1231(b)(3)(A); A.A., 973 F.3d at 177.
To qualify for CAT protection, an alien must demonstrate that
it is more likely than not that he will be subjected to “torture,”
“an extreme form of cruel and inhuman treatment,” upon return
to the proposed country of removal. 8 C.F.R. § 1208.18(a)(2);
see also id. §§ 1208.16(c)(2), 1208.17(a); Myrie v. Att’y Gen.,
855 F.3d 509, 515 (3d Cir. 2017).
6
for three days, during which time he was stabbed twice in the
stomach. He further testified that the Maoists told him that
Nepal was at war and that he was required to help them fight,
but that he was thereafter able to escape from them.
The IJ asked Sunuwar why he did not mention his kid-
napping in his asylum application. Sunuwar responded that he
did not know. He also stated that he was not sure whether he
told his prior counsel about the incident when his application
was written.
Sunuwar testified that after he escaped from his kidnap-
pers, he and his family fled their village and moved to
Kathmandu, where Maoists threatened and extorted them.
Sunuwar did not provide specifics as to how he was threatened
and extorted in Kathmandu, nor did he describe any other inci-
dents where he was harmed in Nepal. He also testified that he
was afraid that people who lent him money for his travel to the
United States would attack him upon his return.
Sunuwar was asked about his attack on his wife, Rima.
He testified that Rima became angry after seeing him speaking
with another woman on the phone. She attacked him, and he
slapped her in the face twice. Sunuwar denied trying to force
Rima to have sex with him.
Sunuwar told the IJ that he pleaded guilty to strangula-
tion because his attorney told him that doing so would secure
him an earlier release. He admitted that he sent Rima letters
while in jail and claimed to have believed that the protection
order would not be effective until he “g[o]t out of jail.” A.R.
202.
7
Rima testified in support of her husband’s application.
She stated that Maoists twice kidnapped Sunuwar, once for
“one and a half months,” and another time for “15 to 16 days.”
A.R. 237. She denied many of the allegations in the affidavit
of probable cause (which was based mainly on her statements
to the police shortly after the incident), telling the IJ that
Sunuwar slapped her, but did not choke or punch her. She fur-
ther stated that Sunuwar did not put a knife to her throat, and
suggested that the statement in the probable cause affidavit that
Sunuwar did so was the result of a misinterpretation. Finally,
Rima testified that she would face significant hardship if her
husband were deported and pleaded with the IJ to forgive
Sunuwar and give him a second chance.
D
The IJ found Sunuwar removable on all four charged
grounds, including violation of a protection order under 8
U.S.C. § 1227(a)(2)(E)(ii). The IJ also denied his application
for relief from removal.
The IJ determined that Sunuwar’s conviction for stran-
gulation was a particularly serious crime, rendering him ineli-
gible for all forms of relief except deferral of removal under
the CAT. The IJ considered the elements of the offense, the
“rather significant period of incarceration,” and the factual
allegations contained in the affidavit of probable cause. A.R.
82. “Given the gravity of the offense,” it was clear to the IJ that
Sunuwar’s conviction was for a particularly serious crime.
A.R. 84.
Next, the IJ determined that neither Sunuwar nor his
wife testified credibly. This finding was based on three incon-
sistencies. First, Sunuwar did not mention his alleged kidnap-
8
ping in his written asylum application, even after he amended
his application to note that he had suffered past harm. Second,
Sunuwar and his wife offered starkly different testimony about
his alleged mistreatment in Nepal. Lastly, Sunuwar and his
wife offered very different accounts of Sunuwar’s conduct on
the night of July 2, 2018, in comparison with what is contained
in the affidavit of probable cause.
After discounting Sunuwar’s and Rima’s testimony, the
IJ denied Sunuwar’s application for CAT deferral, which was
based on a claimed fear of torture either by Maoists or by peo-
ple who loaned him money to travel to the United States. The
IJ found that Sunuwar’s lack of credibility undermined his
claims and that, even considering background evidence on con-
ditions in Nepal, he had not established facts demonstrating
that he would likely be tortured if returned to his country.
E
Sunuwar appealed to the Board of Immigration Appeals
(“BIA”). The BIA ruled against him. It first affirmed that
Sunuwar is removable under 8 U.S.C. § 1227(a)(2)(E)(ii)
based on his conviction for contempt for violating the protec-
tion order. The BIA explained that the no-contact provision in
the protection order issued against Sunuwar “involve[d] pro-
tection against credible threats of violence, repeated harass-
ment, or bodily injury” within the meaning of
§ 1227(a)(2)(E)(ii), so Sunuwar was deportable for having
been found by a Pennsylvania court to have violated that pro-
vision. A.R. 4 (citing Matter of Strydom, 25 I. & N. Dec. 507,
510 (BIA 2011)). Next, the BIA upheld the IJ’s adverse credi-
bility finding against Sunuwar on substantially the same
grounds cited by the IJ. The BIA then upheld the IJ’s finding
that Sunuwar’s strangulation offense was a particularly serious
9
crime. Finally, the BIA affirmed the denial of CAT deferral
because of the lack of credible evidence that Sunuwar would
more likely than not be tortured upon return to Nepal.
This timely petition for review followed.
II
We have jurisdiction over this petition for review of a
final order of removal under 8 U.S.C. § 1252(a). Where, as
here, “the ‘BIA’s opinion directly states that the BIA is defer-
ring to the IJ, or invokes specific aspects of the IJ’s analysis
and factfinding in support of the BIA’s conclusions,’ we
review both decisions.” Uddin v. Att’y Gen., 870 F.3d 282, 289
(3d Cir. 2017) (quoting Oliva-Ramos v. Att’y Gen., 694 F.3d
259, 270 (3d Cir. 2012)). In contrast, where the BIA makes a
merits decision without adopting or invoking the IJ’s reason-
ing, we review only the BIA’s decision. See Calla-Collado v.
Att’y Gen., 663 F.3d 680, 683 (3d Cir. 2011) (per curiam).
We review questions of law, including issues of statu-
tory interpretation, de novo, subject to applicable principles of
deference. See Smriko v. Ashcroft, 387 F.3d 279, 282 (3d Cir.
2004). We review the agency’s factual findings under the
“highly deferential” substantial-evidence standard: “The
agency’s ‘findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.’”
Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020) (quoting 8
U.S.C. § 1252(b)(4)(B)). An adverse credibility determination
is a finding of fact. Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir.
2003) (en banc). “If a reasonable fact finder could make [an
adverse credibility] finding on the administrative record, then
the finding is supported by substantial evidence.” Id. at 249. In
cases like this one, where “our Court is called to evaluate an
10
IJ’s credibility determination that has been adopted by the BIA,
we do so with exceptional deference.” Alimbaev v. Att’y Gen.,
872 F.3d 188, 196 (3d Cir. 2017). To prevail in this Court, a
petitioner challenging an adverse credibility finding that is
based on inconsistencies in his testimony, or between his testi-
mony and other evidence, “must do more than offer a plausible
explanation for his inconsistent statements . . . ; he must
demonstrate that a reasonable fact-finder would be compelled
to credit his testimony.” Pan v. Holder, 737 F.3d 921, 930 (4th
Cir. 2013) (internal quotation marks omitted) (quoting Majidi
v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005)); see also INS v.
Elias-Zacarias, 502 U.S. 478, 481 & n.1 (1992).
III
Sunuwar challenges the agency’s findings that (1) he is
deportable; (2) he committed a particularly serious crime; and
(3) his testimony was not credible. We address each issue in
turn.
A
The BIA found Sunuwar deportable under 8 U.S.C.
§ 1227(a)(2)(E)(ii).3 That statute provides:
Any alien who at any time after admission is
enjoined under a protection order issued by a
court and whom the court determines has
engaged in conduct that violates the portion of a
protection order that involves protection against
3
Because the BIA found Sunuwar deportable only under this
provision, we do not address the three other charges of
removability that the IJ sustained.
11
credible threats of violence, repeated harass-
ment, or bodily injury to the person or persons
for whom the protection order was issued is
deportable. For purposes of this clause, the term
“protection order” means any injunction issued
for the purpose of preventing violent or threaten-
ing acts of domestic violence, including tempo-
rary or final orders issued by civil or criminal
courts (other than support or child custody orders
or provisions) whether obtained by filing an
independent action or as a pendente lite order in
another proceeding.
For an alien to be deportable under this provision: (1)
there must have been a protection order entered by a court
against the alien; (2) at least one portion of that order must have
involved protection against a credible threat of violence,
repeated harassment, or bodily injury; and (3) “a court must
have determined that the alien engaged in conduct that violated
that portion.” Rodriguez v. Sessions, 876 F.3d 280, 284–85 (7th
Cir. 2017).
It is undisputed that Sunuwar was convicted of con-
tempt for violating the protection order issued against him. But
Sunuwar contends that because his conduct in violation of the
protection order consisted solely of writing four non-
threatening letters to Rima, he is not deportable. That argument
clashes with the language of the statute. It does not matter
whether the letters Sunuwar sent to his wife in violation of the
order threatened violence.4 What matters is that the portion of
the order that Sunuwar was found to have violated when he
4
The letters themselves are not in the record, and we do not
know for certain whether they were non-threatening.
12
sent the letters involved protecting Rima from threats of vio-
lence, repeated harassment, or bodily injury. The BIA has held,
and we agree, that the no-contact provisions of a protection
order inherently involve “protection against credible threats of
violence, repeated harassment, or bodily injury,” and therefore
fall under § 1227(a)(2)(E)(ii). See Matter of Strydom, 25 I. &
N. Dec. at 510–11.5 That holding makes sense because “the
primary purpose of a no-contact order is to protect the victims
of domestic abuse by the offender.” Id. at 510 (citing Szalai v.
Holder, 572 F.3d 975, 982 (9th Cir. 2009); Alanis-Alvarado v.
Holder, 558 F.3d 833, 839–40 (9th Cir. 2009)). “Once there is
contact, there can be a significant risk of escalation to vio-
lence.” Cespedes v. Lynch, 805 F.3d 1274, 1278 (10th Cir.
2015).
The order entered against Sunuwar qualifies as a “pro-
tection order” because it was “issued for the purpose of pre-
venting violent or threatening acts of domestic violence.” 8
U.S.C. § 1227(a)(2)(E)(ii). So all that is left to decide is
whether the state court determined that Sunuwar violated the
no-contact provision. The agency properly considered “proba-
tive and reliable evidence regarding what [the Pennsylvania]
court has determined about [Sunuwar’s] violation” in conclud-
ing that Sunuwar unlawfully contacted his wife. Matter of
Obshatko, 27 I. & N. Dec. 173, 176–77 (BIA 2017). Indeed,
Sunuwar admitted before the IJ that he violated the no-contact
provision of the protection order by writing to his wife. There
was no error in the finding of deportability.
5
Other circuits, following Matter of Strydom, have reached the
same conclusion. See Garcia-Hernandez v. Boente, 847 F.3d
869, 873 (7th Cir. 2017); Cespedes v. Lynch, 805 F.3d 1274,
1278 (10th Cir. 2015).
13
B
After finding Sunuwar deportable, the agency deter-
mined that his criminal conduct made him ineligible for asy-
lum, withholding of removal under the INA, and withholding
of removal under the CAT. An alien is ineligible for asylum if,
“having been convicted by a final judgment of a particularly
serious crime, [he is] a danger to the community of the United
States.” 8 U.S.C. § 1158(b)(2)(A)(ii). Withholding of removal
under the INA and withholding of removal under the CAT are
likewise “not available to individuals who have been convicted
of a ‘particularly serious crime.’” Luziga v. Att’y Gen., 937
F.3d 244, 252 (3d Cir. 2019) (quoting 8 U.S.C.
§ 1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(d)(2)).
The phrase “particularly serious crime” includes
offenses other than aggravated felonies. Bastardo-Vale v. Att’y
Gen., 934 F.3d 255, 267 (3d Cir. 2019) (en banc). While some
offenses are per se particularly serious, “the Attorney General
[also] retains the authority, through a case-by-case evaluation
of the facts surrounding an individual alien’s specific offense,
to deem that alien to have committed a particularly serious
crime.” Id. at 265. In conducting its analysis, the agency first
decides whether an offense’s elements “potentially bring the
crime into a category of particularly serious crimes.” Luziga,
937 F.3d at 253 (internal quotation marks omitted) (quoting In
re N-A-M-, 24 I. & N. Dec. 336, 342 (BIA 2007)). If so, the
agency then determines whether the offense is particularly
serious by considering all reliable information about the facts
and circumstances of the offense, “including the conviction
records and sentencing information, as well as other infor-
mation outside the confines of a record of conviction.” Id.(internal quotation marks omitted) (quoting In re N-A-M-, 24
I. & N. Dec. at 342). In this case, the agency considered the
14
elements of the offense, Sunuwar’s sentence, and the offense
conduct, and determined that Sunuwar’s strangulation offense
was a particularly serious crime that made him ineligible for
all forms of relief from removal except deferral of removal
under the CAT.
Sunuwar brings three challenges to the agency’s
particularly-serious-crime determination. First, strangulation is
not that serious because “mere touching without violence,
force, or injury could violate” the Pennsylvania statute. Pet’r
Br. 24. Second, the sentence imposed on him was relatively
light—“less than two years” for an offense “that carried a max-
imum of twenty years.” Id. Third, the “circumstances behind
the conviction” indicate that this was a “mere mutual scuffle.”
Id. at 24–25. Each challenge lacks merit.
1
First, there is no indication from the text of the
Pennsylvania statute that mere touching without force could
constitute strangulation. As the government correctly explains,
“the statute requires the offender to apply pressure to the neck
or throat of another person or block the nose and mouth of the
person, that pressure or blockage must impede that person’s
breathing or circulation, and the offender [must have] know-
ingly or intentionally engaged in that conduct.” Resp’t Br. 40.
Strangulation is, of course, a violent crime, and we see no rea-
son to doubt the agency’s determination that its elements po-
tentially make Sunuwar’s offense a particularly serious crime.
See Denis v. Att’y Gen., 633 F.3d 201, 216 (3d Cir. 2011).
15
2
Second, while it is true that Sunuwar’s sentence was
relatively minor compared to the maximum sentence author-
ized by applicable law, that does not prevent his offense from
being a particularly serious crime. We recently sustained a
particularly-serious-crime determination where an alien
received a non-custodial sentence of time served. See Nkomo
v. Att’y Gen., 930 F.3d 129, 135 (3d Cir. 2019). In Nkomo, we
underscored that particularly-serious-crime determinations are
“not amenable to bright line rules” and that, while the sentence
imposed may be factored in, it is not a dominant factor. Id. (cit-
ing In re N-A-M-, 24 I. & N. Dec. at 342–43). The agency’s
determination that the sentence length favored deeming
Sunuwar’s crime particularly serious was not erroneous.
3
Sunuwar’s final challenge can prevail only if we accept
his version of what happened during his conflict with his wife
and disregard the affidavit of probable cause attesting to
Rima’s injuries. But the agency may consider all reliable infor-
mation in making its particularly-serious-crime assessment,
including an affidavit of probable cause. See Luziga, 937 F.3d
at 253. And Sunuwar’s plea of guilty to first-degree strangula-
tion signifies that his conduct was far worse than what he
recounted to the IJ. The agency’s decision to credit the affidavit
was reasonable, and the contents of that document indicate that
the offense conduct was egregious.
* * *
The BIA has “broad discretion” to decide whether an
offense is a particularly serious crime. Nkomo, 930 F.3d at 134.
16
In light of that discretion, we reject Sunuwar’s challenges to
the BIA’s determination that his strangulation offense was a
particularly serious crime. Sunuwar’s crime disqualifies him
from all forms of relief from removal except deferral of
removal under the CAT.
C
After determining that Sunuwar had committed a par-
ticularly serious crime, the agency denied Sunuwar’s applica-
tion for CAT deferral mainly on the ground that, because his
testimony was not credible, he was unable to establish that he
would more likely than not be tortured if removed to Nepal.
We review this finding of fact for substantial evidence, mean-
ing that the agency’s determination is conclusive unless the
record compels a contrary determination. See Dia, 353 F.3d at247–48.
It is usually difficult for a petitioner to prevail on an
issue where the substantial-evidence standard of review
applies. But Sunuwar’s hurdle in trying to overturn the
agency’s adverse credibility finding is higher still, because his
application for relief from removal was filed after the effective
date of the REAL ID Act of 2005, Pub. L. No. 109-13, 119
Stat. 231. Before the Act was passed, some courts of appeals
had manufactured a requirement that adverse credibility find-
ings rest solely on “inconsistencies and improbabilities that go
to the heart of the asylum claim.” Zheng v. Gonzales, 417 F.3d
379, 381 (3d Cir. 2005) (citing Gao v. Ashcroft, 299 F.3d 266,
272 (3d Cir. 2002)); see also Secaida-Rosales v. INS, 331 F.3d
297, 308 (2d Cir. 2003); Ceballos-Castillo v. INS, 904 F.2d
519, 520 (9th Cir. 1990).
17
But Congress grew “[d]issatisfied with judicial reluc-
tance to accept immigration judges’ credibility decisions.”
Mitondo v. Mukasey, 523 F.3d 784, 787 (7th Cir. 2008). So, for
applications filed after May 11, 2005, the Act replaces our
“judicially-created standard” and “allow[s] a trier of fact to
find a lack of credibility based on any inconsistency or false-
hood, ‘without regard to whether an inconsistency, inaccuracy,
or falsehood goes to the heart of the applicant’s claim.’” Zheng,
417 F.3d at 381 n.1 (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)).
The Act also provides that “[t]here is no presumption of credi-
bility.” 8 U.S.C. § 1158(b)(1)(B)(iii). These provisions apply
not just to applications for asylum, but also to applications for
withholding of removal under the INA and for other forms of
relief from removal. See Chen v. Gonzales, 434 F.3d 212, 216
n.2 (3d Cir. 2005) (citing 8 U.S.C. §§ 1231(b)(3)(C),
1229a(c)(4)(C)). We have recognized that the Act affords IJs
“wide latitude . . . in considering all pertinent factors and
weighing those factors as [they] deem[] appropriate in each
individual case.” Alimbaev, 872 F.3d at 196; accord Mitondo,
523 F.3d at 789 (explaining that the Act permits the agency to
“us[e] whatever combination of considerations seems best in
the situation at hand” when assessing credibility).6 As a result,
6
Under 8 U.S.C. § 1158(b)(1)(B)(iii):
18
“only the most extraordinary circumstances . . . justify over-
turning an adverse credibility determination.” Jibril v.
Gonzales, 423 F.3d 1129, 1138 n.1 (9th Cir. 2005).7
With these principles in mind, we consider the incon-
sistencies and omissions8 that undergirded the agency’s
Considering the totality of the circumstances,
and all relevant factors, [an IJ] may base a
credibility determination on the demeanor,
candor, or responsiveness of the applicant or
witness, the inherent plausibility of the
applicant’s or witness’s account, the consistency
between the applicant’s or witness’s written and
oral statements . . . , the internal consistency of
each such statement, the consistency of such
statements with other evidence of record . . . ,
and any inaccuracies or falsehoods in such
statements, [whether or not] an inconsistency,
inaccuracy, or falsehood goes to the heart of the
applicant’s claim, or any other relevant factor.
7
The latitude afforded by the Act is not unlimited. A trivial
inconsistency will not support an adverse credibility finding.
See Yuan v. Lynch, 827 F.3d 648, 653 (7th Cir. 2016).
8
“An inconsistency and an omission are, for these purposes,
functionally equivalent. A lacuna in an applicant’s testimony
or omission in a document submitted to corroborate the
applicant’s testimony, like a direct inconsistency between one
or more of those forms of evidence, can serve as a proper basis
for an adverse credibility determination.” Lin v. Mukasey, 534
F.3d 162, 166 n.3 (2d Cir. 2008) (per curiam) (citation
omitted); see also Gao v. Sessions, 891 F.3d 67, 78 (2d Cir.
2018).
19
adverse credibility finding. The agency gave three principal
reasons to support its finding: (1) the evidence was inconsistent
as to the number and length of Sunuwar’s alleged kidnappings,
with Sunuwar testifying that Maoists kidnapped him once for
three days, and Rima testifying that Maoists kidnapped
Sunuwar twice, once for fifteen or sixteen days and again for
forty-five days; (2) Sunuwar initially did not even mention his
alleged kidnapping and stabbing—his sole incident alleging
past physical harm—in his asylum application; and (3)
Sunuwar’s and Rima’s accounts of the events giving rise to the
strangulation conviction conflicted starkly with the allegations
in the affidavit of probable cause. We discuss each incon-
sistency and omission individually.
1
Sunuwar first argues that his testimony regarding the
length and number of kidnappings can be reconciled with
Rima’s. While Rima testified that Sunuwar was kidnapped
twice, both times for far longer than three days, Sunuwar
explains that he and his wife were “describing different
events.” Pet’r Br. 27. Sunuwar never expressly stated that he
had been kidnapped only once, so Rima’s testimony describes
additional kidnappings that he neglected to mention. Sunuwar
thus maintains that Rima never contradicted his testimony that
he experienced a kidnapping lasting three days, and that the
agency erred in discounting his testimony on this basis.
This explanation fails because it does not compel a rea-
sonable factfinder to excuse the inconsistency or to credit
Sunuwar’s testimony. We agree with the government that “[i]f
Sunuwar had actually been kidnapped more than the one time
he alleged, he needed to say so.” Resp’t Br. 28. The agency
properly concluded that this clear and significant discrepancy
20
between Sunuwar’s and Rima’s testimony called Sunuwar’s
credibility into serious question. And the agency’s reliance on
this discrepancy in assessing credibility is even more appropri-
ate because Sunuwar was given ample opportunity to provide
additional detail regarding any past harm he suffered, but failed
to do so. The agency did not err in relying on this discrepancy
as a reason to disregard Sunuwar testimony.
2
Sunuwar next claims that his prior counsel is at fault for
the fact that his asylum application did not mention the alleged
kidnapping, so the omission does not cast doubt on his credi-
bility. Despite this explanation, we conclude that the omission
of any reference to the only alleged incident of past harm that
Sunuwar testified about plainly supports a finding of adverse
credibility. See Xie v. Ashcroft, 359 F.3d 239, 243 (3d Cir.
2004) (explaining that the omission of a key event from an
alien’s written asylum application can support an adverse cred-
ibility finding). Sunuwar himself signed the asylum application
and attested to its completeness. And the propriety of the
agency’s reliance on this omission is buttressed by Sunuwar’s
testimony that he did not know whether he told his prior coun-
sel about his kidnapping before the application was filed. See
A.R. 210 (“I don’t know if I told [my attorney about the kid-
napping] when this application was written.”). Sunuwar has
not demonstrated that a reasonable factfinder would be com-
21
pelled to accept his explanation for the omission, and the
agency did not err in relying on it.9
3
Finally, Sunuwar contends that the agency erred in
relying on the probable-cause affidavit prepared by Officer
Iorio to disregard both Sunuwar’s and Rima’s testimony about
the facts giving rise to the strangulation conviction. Sunuwar
asserts that it is “beyond reprehensible that an IJ would rely on
[the affidavit] as reliable evidence that has been proven beyond
a reasonable doubt.” Pet’r Br. 30. But the IJ did no such thing.
The IJ simply deemed the probable-cause affidavit, which was
completed and signed by a trained police officer, to be more
reliable evidence than his and Rima’s testimony. This weigh-
ing of evidence is permitted by the REAL ID Act. See 8 U.S.C.
§ 1158(b)(1)(B)(iii) (allowing credibility determinations to
stem from “the consistency between the applicant’s or wit-
ness’s . . . statements” and “other evidence of record”). More-
over, the Act permitted the IJ to rely on this inconsistency even
though it did not go “to the heart of” Sunuwar’s claim that he
would be tortured if returned to Nepal. Id. The IJ never deter-
mined—nor was he required to determine—that the veracity of
every factual statement in the affidavit had been established
beyond a reasonable doubt. And Sunuwar’s decision to plead
guilty to first-degree strangulation makes it difficult to believe
that he did not inflict serious injuries on his wife. Sunuwar has
not established that a reasonable factfinder would be com-
9
Sunuwar contends, based on this omission, that his prior
counsel provided ineffective assistance. But he did not raise
this claim to the BIA, so we lack jurisdiction to consider it. See
Lin v. Att’y Gen., 543 F.3d 114, 120–21 (3d Cir. 2008).
22
pelled to disregard the affidavit of probable cause and credit
his testimony.
* * *
Under the substantial-evidence standard, we defer to an
IJ’s credibility determination unless “no reasonable fact finder
could make that finding on the administrative record.” Dia, 353
F.3d at 249. The multiple inconsistencies present here “force-
fully” preclude Sunuwar from showing that the IJ “was com-
pelled to find him credible.” Gao v. Barr, 968 F.3d 137, 145
n.8 (2d Cir. 2020). Because the agency’s adverse credibility
finding was reasonable, we may not disturb it.
In the circumstances of this case, it is clear that Sunuwar
cannot prevail on his CAT claim without credible testimony.
Because we uphold the agency’s adverse credibility finding as
supported by substantial evidence, we also uphold the agency’s
decision to deny CAT protection. Sunuwar has not established
that he would more likely than not be tortured if removed to
Nepal.
IV
The agency correctly determined that Sunuwar is
deportable and that he committed a particularly serious crime.
In addition, the agency’s adverse credibility finding is sup-
ported by substantial evidence. We will therefore deny the
petition for review.
23