16-2816 Lama v. Sessions BIA Poczter, IJ A206 567 088

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 24th day of April, two thousand eighteen. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 DENNIS JACOBS, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges. 11 _____________________________________ 12 13 BIR BAHADUR LAMA, 14 Petitioner, 15 16 v. 16-2816 17 NAC 18 19 JEFFERSON B. SESSIONS III, 20 UNITED STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Stuart Altman, New York, NY. 25 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; Erica B. Miles, 28 Senior Litigation Counsel; Enitan 29 O. Otunla, Trial Attorney, Office 30 of Immigration Litigation, United 31 States Department of Justice, 32 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 Bir Bahadur Lama, a native and citizen of

6 Nepal, seeks review of a July 29, 2016, decision of the BIA

7 affirming a June 15, 2015, decision of an Immigration Judge

8 (“IJ”) denying Lama’s application for asylum, withholding

9 of removal, and relief under the Convention Against Torture

10 (“CAT”). In re Bir Bahadur Lama, No. A206 567 088 (B.I.A.

11 July 29, 2016), aff’g No. A206 567 088 (Immig. Ct. N.Y.

12 City June 15, 2015). We assume the parties’ familiarity

13 with the underlying facts and procedural history in this

14 case.

15 Under the circumstances of this case, we have reviewed

16 the IJ’s decision as modified by the BIA, i.e., excluding

17 the IJ’s internal relocation finding and reliance on Lama’s

18 asylum interview. See Xue Hong Yang v. U.S. Dep’t of

19 Justice,

(2d Cir. 2005). The applicable

20 standards of review are well established. See 8 U.S.C.

21 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey,

, 165-

22 66 (2d Cir. 2008).

2 1 The governing REAL ID Act credibility standard provides

2 that the agency must “[c]onsider[] the totality of the

3 circumstances,” and may base a credibility finding on an

4 applicant’s “demeanor, candor, or responsiveness,” the

5 plausibility of his account, and inconsistencies or

6 omissions in his or his witness’s statements, “without

7 regard to whether” they go “to the heart of the applicant’s

8 claim.”

(b)(1)(B)(iii); Xiu Xia Lin, 534

9 F.3d at 163-64, 166-67. “A petitioner must do more than

10 offer a plausible explanation for his inconsistent

11 statements to secure relief; he must demonstrate that a

12 reasonable fact-finder would be compelled to credit his

13 testimony.” Majidi v. Gonzales,

(2d Cir.

14 2005) (internal quotation marks and emphasis omitted). “We

15 defer . . . to an IJ’s credibility determination unless . .

16 . it is plain that no reasonable fact-finder could make

17 such an adverse credibility ruling.” Xiu Xia Lin,

. For the reasons that follow, we conclude that

19 substantial evidence supports the agency’s finding that

20 Lama was not credible.

21 The agency reasonably based the credibility

22 determination on Lama’s internally inconsistent testimony

3 1 and inconsistency between his testimony and evidence about

2 when his father registered his wife’s death, particularly

3 as his wife’s death was central to his claim that he was

4 targeted by Maoists. See

(b)(1)(B)(iii); Xiu

5 Xia Lin, 534 F.3d at 167 (“[A]n IJ may rely on any

6 inconsistency . . . in making an adverse credibility

7 determination as long as the ‘totality of the

8 circumstances’ establishes that an asylum applicant is not

9 credible.”). Lama initially testified that his father

10 reported his wife’s death when she died, but later

11 testified that his father did not. Lama’s explanation—that

12 his father initially just informed the village development

13 committee about the death—did not explain his inconsistent

14 testimony or clarify when the death was reported. In

15 addition, although Lama testified that his father obtained

16 his wife’s death certificate, the certificate itself

17 reflects that Lama provided the information on which it was

18 based. Lama’s explanation that his name appeared on the

19 death certificate only because he was the husband was not

20 compelling and also conflicted with the certificate.

21 The agency also reasonably relied on an omission from

22 Lama’s application, direct testimony, and father’s letter

4 1 that Maoists threatened him through his father not to

2 report his wife’s death. See Xiu Xia Lin,

-

3 67 & n.3 (“An inconsistency and an omission

4 are . . . functionally equivalent” for credibility

5 purposes.). The agency was not required to credit Lama’s

6 explanations—that he omitted the threat because it was made

7 to his father and that his father did not know to mention

8 it in his letter—because Lama included other indirect

9 threats in his application and his father’s letter

10 mentioned relaying other threats. See Majidi,

80 (“A petitioner must do more than offer a plausible

12 explanation for his inconsistent statements to secure

13 relief, he must demonstrate that a reasonable fact-finder

14 would be compelled to credit his testimony (internal

15 quotation marks omitted)).

16 Finally, the credibility determination is bolstered by

17 the IJ’s observations of Lama’s demeanor and the absence of

18 sufficient corroborating evidence to rehabilitate his

19 testimony. See Chen v. U.S. Dep’t of Justice,

(2d Cir. 2005) (“We give particular deference to

21 credibility determinations that are based on the

22 adjudicator’s observation of the applicant’s demeanor . . .

5 1 .”); Biao Yang v. Gonzales,

(2d Cir.

2 2007) (”An applicant’s failure to corroborate his or her

3 testimony may bear on credibility . . . .”). The IJ’s

4 observation that Lama was nonresponsive and unwilling to

5 answer when confronted with inconsistencies on cross-

6 examination is reflected in the record, as evidenced by the

7 number of questions the government attorney had to ask to

8 learn how and when Lama obtained the death certificate.

9 See Li Hua Lin v. U.S. Dep’t of Justice,

, 109

10 (2d Cir. 2006) (“We can be still more confident in our

11 review of observations about an applicant’s demeanor where,

12 as here, they are supported by specific examples of

13 inconsistent testimony.”).

14 While Lama faults the IJ for ignoring corroborating

15 evidence, including his father’s letter and wife’s death

16 certificate, the record reflects the opposite. The IJ

17 explicitly considered the death certificate and Lama’s

18 father’s letter but, as noted above, discrepancies between

19 this evidence and Lama’s testimony created, rather than

20 resolved, credibility issues. And while the IJ did not

21 explicitly mention Lama’s medical records and letters from

22 the Nepali Congress Party and Maoists, the IJ stated that

6 1 she had considered all of the documents. Wei Guang Wang v.

2 Bd. of Immigration Appeals,

(2d Cir.

3 2006) (noting that the agency need not “expressly parse or

4 refute on the record each individual argument or piece of

5 evidence offered by the petitioner” (internal quotation

6 marks omitted)). Given other credibility problems, the

7 agency reasonably concluded that these documents did not

8 rehabilitate his testimony. See Y.C. v. Holder,

(2d Cir. 2013) (“We generally defer to the

10 agency’s evaluation of the weight to be afforded an

11 applicant’s documentary evidence.”).

12 Given the foregoing inconsistency, omission, demeanor,

13 and corroboration findings, we conclude that the adverse

14 credibility determination is supported by the “totality of

15 the circumstances.” Xiu Xia Lin,

.

16 Contrary to Lama’s position, the credibility determination

17 is dispositive of asylum, withholding of removal, and CAT

18 relief because all three claims are based on the same

19 factual predicate. See Paul v. Gonzales,

,

20 156-57 (2d Cir. 2006).

21 For the foregoing reasons, the petition for review is

22 DENIED. As we have completed our review, any stay of removal

7 1 that the Court previously granted in this petition is VACATED,

2 and any pending motion for a stay of removal in this petition

3 is DISMISSED as moot. Any pending request for oral argument

4 in this petition is DENIED in accordance with Federal Rule of

5 Appellate Procedure 34(a)(2), and Second Circuit Local Rule

6 34.1(b).

7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, Clerk of Court

8