20-1645 Suraj v. Garland BIA Poczter, IJ A208 925 459 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 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 18th day of July, two thousand twenty-two.

PRESENT: JON O. NEWMAN, JOSÉ A. CABRANES, STEVEN J. MENASHI, Circuit Judges. _____________________________________

G.C. SURAJ, Petitioner,

v. 20-1645 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Khagendra Gharti-Chhetry, Esq., New York, NY.

FOR RESPONDENT: Bryan Boynton, Acting Assistant Attorney General; Justin Markel, Senior Litigation Counsel, Nancy E. Friedman, Senior Litigation Counsel, 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 G.C. Suraj, a native and citizen of Nepal,

seeks review of a May 11, 2020, decision of the BIA affirming

a July 2, 2018, decision of an Immigration Judge (“IJ”)

denying asylum, withholding of removal, and protection under

the Convention Against Torture (“CAT”). In re G.C. Suraj,

No. A208 925 459 (B.I.A. May 11, 2020), aff’g No. A208 925

459 (Immig. Ct. N.Y. City July 2, 2018). We assume the

parties’ familiarity with the underlying facts and procedural

history.

We have considered both the IJ’s and the BIA’s opinions

“for the sake of completeness.” Wangchuck v. Dep’t of

Homeland Security,

(2d Cir. 2006). The

applicable standards of review are well established. See

(b)(4)(B) (“[T]he administrative findings of

2 fact are conclusive unless any reasonable adjudicator would

be compelled to conclude to the contrary.”). “[W]e review the

agency’s decision for substantial evidence and must defer to

the factfinder’s findings based on such relevant evidence as

a reasonable mind might accept as adequate to support a

conclusion.” Singh v. Garland,

(2d Cir.

2021) (internal quotation marks omitted); Hong Fei Gao v.

Sessions,

(2d Cir. 2018) (reviewing adverse

credibility determination for substantial evidence).

“Considering the totality of the circumstances, and all

relevant factors, a trier of fact may base a credibility

determination on . . . the consistency between the applicant’s

or witness’s written and oral statements (whenever made and

whether or not under oath, and considering the circumstances

under which the statements were made), the internal

consistency of each such statement, the consistency of such

statements with other evidence of record . . . without regard

to whether an inconsistency, inaccuracy, or falsehood goes to

the heart of the applicant’s claim, or any other relevant

factor.”

(b)(1)(B)(iii). “We defer . . . to

an IJ’s credibility determination unless, from the totality

3 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,

.

Substantial evidence supports the adverse credibility

determination given inconsistencies between Suraj’s testimony

and affidavits he submitted in support of his application.

See

(b)(1)(B)(iii). First, Suraj testified

that Maoists assaulted him because he supported the Nepali

Congress Party (“NCP”) and refused to give the Maoists a

donation. He explicitly stated that he was afraid to seek

medical treatment following this attack and that his neighbor

came to his home but did not take him to the hospital. In

contrast, that neighbor wrote that he and other neighbors

took Suraj to the hospital where he stayed for two days. The

agency was not required to credit Suraj’s explanation that

his father helped prepare the neighbor’s affidavit and may

have made a mistake because Suraj submitted the document

despite the alleged error. See Majidi v. Gonzales,

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

a plausible explanation for his inconsistent statements to

4 secure relief; he must demonstrate that a reasonable fact-

finder would be compelled to credit his testimony.”

(quotation marks omitted)).

Second, the agency reasonably relied on inconsistencies

between Suraj’s testimony and affidavits regarding the number

of attacks. See

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

affidavits from Suraj’s father, his neighbor, and the NCP

reported that Maoists attacked Suraj on two occasions, but

Suraj testified to only one attack. On the day of his

hearing, Suraj submitted an email in which his father admitted

fabricating the second attack and telling the neighbor and

the NCP to report two attacks, and he argues here that the

agency should not have relied on third party embellishments

in making an adverse credibility determination. To the

contrary, the agency reasonably concluded that the false

affidavits undermined Suraj’s credibility. See Rui Ying Lin

v. Gonzales,

(2d Cir. 2006) (“[The agency]

may be justified . . . in concluding that a falsified

document that goes to the heart of an applicant’s claim for

asylum, if submitted as evidence in an asylum proceeding,

calls into question the authenticity of other documents

5 submitted in support of that application.”). The agency was

not required to credit Suraj’s explanation that his father

was confused about what to write because he was receiving

threats, particularly as confusion would not explain why he

created a second attack or directed others to repeat that

false information. See Majidi,

.

Finally, Suraj’s testimony and written statement were

inconsistent about whether he received threats from Maoists

in the two years after he relocated to Kathmandu. See

(b)(1)(B)(iii). Suraj testified that he was threatened

once while walking in Kathmandu, but on cross-examination he

said he received many threatening telephone calls. He did

not mention these telephonic threats in his written

statement. The agency reasonably relied on the inconsistency

in his testimony and omission from his application. See Hong

Fei Gao, 891 F.3d at 78–79 (“In assessing the probative value

of the omission of certain facts, [the agency] should consider

whether those facts are ones that a credible petitioner would

reasonably have been expected to disclose under the relevant

circumstances.”).

6 Given the multiple inconsistencies, substantial evidence

supports the adverse credibility determination. See

(b)(1)(B)(iii); Likai Gao v. Barr,

, 145

n.8 (2d Cir. 2020) (“[E]ven a single inconsistency might

preclude an alien from showing that an IJ was compelled to

find him credible. Multiple inconsistencies would so preclude

even more forcefully.”). The adverse credibility

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,

, 156–57 (2d Cir. 2006).

For the foregoing reasons, the petition for review is

DENIED. All pending motions and applications are DENIED and

stays VACATED.

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

7