17-1005 Bohara v. Whitaker BIA Poczter, IJ A206 475 735

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 25th day of January, two thousand nineteen. 5 6 PRESENT: 7 JON O. NEWMAN, 8 DENNY CHIN, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 RAM KRISHNA BOHARA, 14 Petitioner, 15 16 v. 17-1005 17 NAC 18 MATTHEW G. WHITAKER, 19 ACTING UNITED STATES ATTORNEY 20 GENERAL, 21 Respondent. 22 _____________________________________ 23 24 1 FOR PETITIONER: Khagendra Gharti-Chhetry, New 2 York, NY. 3 4 FOR RESPONDENT: Chad A. Readler, Principal 5 Deputy Assistant Attorney 6 General; Cindy S. Ferrier, 7 Assistant Director; Surell 8 Brady, Trial Attorney, Office of 9 Immigration Litigation, United 10 States Department of Justice, 11 Washington, DC. 12 13 UPON DUE CONSIDERATION of this petition for review of a

14 Board of Immigration Appeals (“BIA”) decision, it is hereby

15 ORDERED, ADJUDGED, AND DECREED that the petition for review

16 is DENIED.

17 Petitioner Ram Krishna Bohara, a native and citizen of

18 Nepal, seeks review of a March 9, 2017, decision of the BIA

19 affirming an August 2, 2016, decision of an Immigration Judge

20 (“IJ”) denying Bohara’s application for asylum, withholding

21 of removal, and relief under the Convention Against Torture

22 (“CAT”). In re Ram Krishna Bohara, No. A206 475 735 (B.I.A.

, 2017), aff’g No. A206 475 735 (Immig. Ct. N.Y. City

24 Aug. 2, 2016). We assume the parties’ familiarity with the

25 underlying facts and procedural history in this case.

26 Under the circumstances of this case, we have reviewed

27 the IJ’s decision as the final agency decision. Shunfu Li v.

28 Mukasey,

(2d Cir. 2008). The applicable

2 1 standards of review are well established. See 8 U.S.C.

2 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey,

, 165-

3 66 (2d Cir. 2008).

4 The governing REAL ID Act credibility standard provides

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

6 circumstances,” and may base a credibility finding on

7 inconsistencies or omissions in his or his witness’s

8 statements, “without regard to whether” they go “to the

9 heart of the applicant’s claim.” 8 U.S.C.

10 § 1158(b)(1)(B)(iii); accord Xiu Xia Lin,

-

11 64, 166-67. “[E]ven where an IJ relies on discrepancies or

12 lacunae that, if taken separately, concern matters

13 collateral or ancillary to the claim, the cumulative effect

14 may nevertheless be deemed consequential by the fact-

15 finder.” Tu Lin v. Gonzales,

(2d Cir.

16 2006) (internal quotation marks and citation omitted). “We

17 defer . . . to an IJ’s credibility determination

18 unless . . . it is plain that no reasonable fact-finder

19 could make such an adverse credibility ruling.” Xiu Xia

20 Lin,

. See also Hong Fei Gao v. Sessions,

21

(2d Cir. 2018). For the reasons that

3 1 follow, we conclude that substantial evidence supports the

2 agency’s credibility ruling.

3 First, the agency reasonably relied on inconsistency

4 between Bohara’s testimony and evidence concerning his one

5 alleged physical altercation with Maoists.

.

6 Bohara’s application and testimony reflected that he was

7 slapped by one individual; however, a letter from the

8 Nepali Congress Party (“NCP”) stated that Maoists attacked

9 and injured him, and a letter from a NCP candidate stated

10 that Bohara was badly injured by Maoists. The agency was

11 not required to credit Bohara’s explanation—that he did not

12 know why the letters stated that was injured—because it did

13 not explain the inconsistencies. Majidi v. Gonzales, 430

(2d Cir. 2005) (“A petitioner must do more than

15 offer a plausible explanation for his inconsistent

16 statements to secure relief; he must demonstrate that a

17 reasonable fact-finder would be compelled to credit his

18 testimony.” (internal quotation marks omitted)). The agency

19 also properly found these discrepancies significant because

20 they related to Bohara’s only allegation of past physical

21 harm. Xiu Xia Lin,

.

4 1 Second, the agency reasonably relied on inconsistency

2 between Bohara’s testimony and evidence concerning when he

3 joined the NCP. Tu Lin,

. Bohara testified

4 that he joined the NCP on August 19, 2006, but his party’s

5 letter stated that he joined on April 10, 2008. The agency

6 was not compelled to credit Bohara’s explanation that he

7 forgot when he joined the NCP. Majidi, 430 F.3d at 80.

8 Although a discrepancy in dates need not be fatal if “minor

9 and isolated,” Diallo v. INS,

(2d Cir.

10 2000), Bohara’s date discrepancy spanned nearly two years.

11 Moreover, Bohara’s credibility on this point was further

12 undermined by the fact that his party certificate had a

13 blank space for his membership date. See Xiu Xia Lin, 534

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

15 are . . . functionally equivalent” for credibility

16 purposes.).

17 Third, the agency reasonably relied on the inconsistency

18 between Bohara’s testimony and evidence concerning the

19 results of the 2013 constituent assembly elections.

at

20 163-64. Bohara’s testimony that Maoists won the elections

21 was contradicted by the country conditions evidence. After

22 initially testifying that the country conditions evidence was

5 1 wrong, Bohara explained that he forgot who won. The agency

2 reasonably rejected this explanation because Bohara

3 specifically testified that he worked on these elections.

4 Majidi, 430 F.3d at 80.

5 Fourth, the agency reasonably relied on inconsistency

6 between Bohara’s testimony and evidence concerning the date

7 of his father’s attack. Tu Lin,

. Bohara

8 testified that Maoists attacked his father on November 25,

9 2015, but a letter from the police stated that the attack

10 occurred on December 7, 2015. The agency did not err in

11 rejecting Bohara’s explanation—that the date in the letter

12 was a mistake—because it was not compelling given the other

13 date discrepancies in the record. Majidi, 430 F.3d at 80.

14 While this inconsistency is minor, it nevertheless provides

15 additional support for the agency’s adverse credibility

16 ruling. Tu Lin,

.

17 Given the foregoing inconsistencies, which call into

18 question Bohara’s sole allegation of past physical harm and

19 whether he supported the NCP, the “totality of the

20 circumstances” supports the agency’s adverse credibility

21 determination. Xiu Xia Lin,

. The

22 credibility determination is dispositive of asylum,

6 1 withholding of removal, and CAT relief because all three

2 claims are based on the same factual predicate. See Paul v.

3 Gonzales,

(2d Cir. 2006).

4 For the foregoing reasons, the petition for review is

5 DENIED.

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

7