18-174 Pun v. Barr BIA Christensen, IJ A206 478 898

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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 14th day of September, two thousand twenty.

PRESENT: JOSÉ A. CABRANES, ROSEMARY S. POOLER, DENNY CHIN, Circuit Judges. _____________________________________

KAPIL PUN, Petitioner,

v. 18-174 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Dilli Raj Bhatta, Bhatta Law & Associates, PLLC, New York, NY.

FOR RESPONDENT: Ethan P. Davis, Acting Assistant Attorney General; Kohsei Ugumori, Senior Litigation Counsel; Brett F. Kinney, Attorney; Karen M. Sams, Law Clerk, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

Petitioner Kapil Pun, a native and citizen of Nepal,

seeks review of a December 26, 2017, decision of the BIA

affirming a May 31, 2017, decision of an Immigration Judge

(“IJ”) denying Pun’s application for asylum, withholding of

removal, and relief under the Convention Against Torture

(“CAT”). In re Kapil Pun, No. A 206 478 898 (B.I.A. Dec. 26,

2017), aff’g No. A 206 478 898 (Immig. Ct. N.Y. City May 31,

2017). We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

We have reviewed the IJ’s decision as the agency’s final

order. See Shunfu Li v. Mukasey,

(2d Cir.

2008). We review adverse credibility determinations for

substantial evidence. See

(b)(4)(B); Hong Fei

Gao v. Sessions,

(2d Cir. 2018). “Considering

the totality of the circumstances, and all relevant factors,

a trier of fact may base a credibility determination on the

2 demeanor, candor, or responsiveness of the applicant or

witness, . . . the consistency between the applicant’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 . . . .”

(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility

determination unless, from the totality of the circumstances,

it is plain that no reasonable fact-finder could make such an

adverse credibility ruling.” Xiu Xia Lin v. Mukasey,

(2d Cir. 2008); accord Hong Fei Gao,

. The Government argues Pun failed to exhaust his

specific arguments on appeal to the BIA and thus forfeited

his right to challenge some of the agency’s findings here.

See Brito v. Mukasey,

(2d Cir. 2008). We

need not reach that issue, however, as even assuming his

arguments are not forefeited, substantial evidence supports

the IJ’s adverse credibility determination.

The IJ reasonably relied on Pun’s differing accounts of

his alleged persecution. See

(b)(1)(B)(iii).

Pun omitted from his written statement that Maoists attempted

to abduct him by forcing him into a van; and the IJ did not

3 err in relying on the omission given Pun’s inclusion of less

serious telephonic kidnapping threats. See Hong Fei Gao,

(“[I]n assessing the probative value of the

omission of certain facts, an IJ should consider whether those

facts are ones that a credible petitioner would reasonably

have been expected to disclose under the relevant

circumstances”); Xian Tuan Ye v. Dep’t of Homeland Sec.,

(2d Cir. 2006) (holding that “material

inconsistency in an aspect of [an applicant’s] story that

served as an example of the very persecution from which he

sought asylum . . . afforded substantial evidence to support

the adverse credibility finding.” (internal quotation marks

and citation omitted)). Pun’s explanation that he did not

remember the details of the attack because it occurred more

than four years before the hearing did not compellingly

explain this omission because his written statement was

prepared a year earlier. See Majidi v. Gonzales,

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

a plausible explanation for . . . inconsistent statements to

secure relief; he must demonstrate that a reasonable fact-

finder would be compelled to credit his testimony.” (internal

quotations omitted)).

4 The IJ also reasonably concluded that Pun’s statements

conflicted with letters from his friends and father because

each provided different accounts of how, when, and with whom

Pun received medical treatment following the attack. The IJ

was not compelled to accept Pun’s explanation—mutual

forgetfulness resulting from the passage of time—which did

not resolve the inconsistencies. See Majidi,

.

Though we do not require petitioners to recall the aftermath

of an alleged attack in precise detail, Hong Fei Gao,

, the agency may, as here, “draw an adverse inference

from [a petitioner’s] failure to recall the particulars of

what happened” after a “profound” event, Tu Lin v. Gonzales,

(2d Cir. 2006).

Similarly, Pun’s testimony and written statement were

internally inconsistent regarding when he joined the Nepali

Student Union (“NSU”) and contradicted his witnesses’

statements as to his level of involvement with the group.

The IJ reasonably relied on these discrepancies because Pun’s

affiliation with the group was the alleged reason he was

targeted by the Maoists. See Xian Tuan Ye,

.

Moreover, the IJ was not required to accept Pun’s explanation

for these inconsistencies, which largely parsed his

5 witnesses’ use of words like “organize” and “active” and

failed to explain why his witnesses characterized him as a

group leader when Pun disclaimed a leadership role. See

Majidi,

.

The IJ reasonably concluded that Pun’s lack of

familiarity with his own evidence further undermined his

credibility. Pun could not identify a request for security

from the Nepali government filed on his behalf, which was

also inconsistent with his testimony that he did not report

the attack to the authorities, or an NSU letter attesting to

his membership. See

Moreover, given the lack of

familiarity with his documentary evidence, the

inconsistencies between Pun’s statements and the evidence,

and the fact that the authors were not available for cross

examination, Pun’s evidence did not rehabilitate his

credibility. See Biao Yang v. Gonzales,

(2d Cir. 2007) (“An applicant’s failure to corroborate his

. . . testimony may bear on credibility, because the absence

of corroboration in general makes an applicant unable to

rehabilitate testimony that has already been called into

question.”); see also Y.C. v. Holder,

(2d

Cir. 2013) (“We generally defer to the agency’s evaluation of

6 the weight to be afforded an applicant’s documentary

evidence.”).

Given the inconsistencies and the lack of reliable

corroboration, the “totality of the circumstances” supports

the adverse credibility determination. See

(b)(1)(B)(iii). This determination is dispositive of

asylum, withholding of removal, and CAT relief because all

three claims were based on the same factual predicate. See

Paul v. Gonzales,

(2d Cir. 2006).

For the foregoing reasons, the petition for review is

DENIED.

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

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