20-2597 Malla v. Garland BIA Laforest, IJ A205 030 951 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.

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 4th day of August, two thousand twenty-two. 5 6 PRESENT: 7 GUIDO CALABRESI, 8 RICHARD J. SULLIVAN, 9 BETH ROBINSON, 10 Circuit Judges. 11 _____________________________________ 12 13 SONU MALLA, 14 Petitioner, 15 16 v. 20-2597 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Khagendra Gharti-Chhetry, New 24 York, NY. 25 26 FOR RESPONDENT: Brian Boynton, Acting Assistant 27 Attorney General; Julie M. 28 Iversen, Senior Litigation 1 Counsel; Kathryn M. McKinney, 2 Attorney, Office of Immigration 3 Litigation, United States 4 Department of Justice, Washington, 5 DC.

6 UPON DUE CONSIDERATION of this petition for review of a

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

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

9 is DENIED.

10 Petitioner Sonu Malla, a native and citizen of Nepal,

11 seeks review of a July 7, 2020, decision of the BIA affirming

12 a May 3, 2018, decision of an Immigration Judge (“IJ”) denying

13 her application for asylum, withholding of removal, and

14 relief under the Convention Against Torture (“CAT”). In re

15 Sonu Malla, No. A 205 030 951 (B.I.A. July 7, 2020), aff’g

16 No. A 205 030 951 (Immig. Ct. N.Y. City May 3, 2018). We

17 assume the parties’ familiarity with the underlying facts and

18 procedural history.

19 In lieu of filing a responsive brief, the Government

20 moves for summary denial. A summary ruling without “full

21 merits briefing . . . is, and should be treated as, a rare

22 exception to the completion of the appeal process . . . .

23 that is available only if an appeal is truly frivolous.”

24 United States v. Davis,

(2d Cir. 2010) 2 1 (quotation marks omitted); see also Pillay v. INS,

14, 16–17 (2d Cir. 1995). Nevertheless, because petitioner

3 has filed a brief on the merits in addition to an opposition

4 to the Government’s motion, we may construe the Government’s

5 motion as its brief and deny the petition on the merits rather

6 than determine if the petition is frivolous.

7 We have considered the IJ’s decision as modified by the

8 BIA. See Xue Hong Yang v. U.S. Dep’t of Justice,

(2d Cir. 2005). We review adverse credibility

10 determinations for substantial evidence, see Hong Fei Gao v.

11 Sessions,

(2d Cir. 2018), and “the

12 administrative findings of fact are conclusive unless any

13 reasonable adjudicator would be compelled to conclude to the

14 contrary,”

(b)(4)(B). The IJ may,

15 “[c]onsidering the totality of the circumstances,” base a

16 credibility determination on inconsistencies in an

17 applicant’s statements or between her statements and other

18 evidence, “without regard to whether an inconsistency,

19 inaccuracy, or falsehood goes to the heart of the applicant’s

20 claim.”

(b)(1)(B)(iii). We “defer . . . to

21 an IJ’s [adverse] credibility determination unless, from the

3 1 totality of the circumstances, it is plain that no reasonable

2 fact-finder could make such an adverse credibility ruling.”

3 Xiu Xia Lin v. Mukasey,

(2d Cir. 2008);

4 accord Hong Fei Gao,

. Substantial evidence

5 supports the adverse credibility determination.

6 Malla alleged that Maoists threatened and assaulted her

7 because of her work for a Christian organization and her

8 political activities. The IJ reasonably relied on Malla’s

9 omission of material allegations from her original written

10 statement. See Xiu Xia Lin,

(holding that

11 agency may rely on inconsistencies or omissions). That

12 original statement did not mention (1) her membership in the

13 Nepali Student Union and the Nepali Congress Party (“NCP”),

14 (2) her persecution on account of her political activities,

15 or (3) an assault by Maoists. The IJ did not err in relying

16 on these omissions because Malla failed to mention the most

17 central aspects of her asylum claim, including the specific

18 political groups to which she allegedly belonged and the May

19 15, 2009 incident that constituted the most severe of her

20 allegations of past harm. See

(b)(1)(B)(ii);

21 Hong Fei Gao,

(explaining that the “probative

4 1 value of a witness’s prior silence on particular facts depends

2 on whether those facts are ones the witness would reasonably

3 have been expected to disclose”). The IJ was not required

4 to credit Malla’s explanation that she did not have an

5 attorney when she prepared the original application given the

6 materiality of the omissions. See Majidi v. Gonzales, 430

, 80 (2d Cir. 2005) (“A petitioner must do more than

8 offer a plausible explanation for h[er] inconsistent

9 statements to secure relief; [s]he must demonstrate that a

10 reasonable fact-finder would be compelled to credit h[er]

11 testimony.” (quotation marks omitted)).

12 The IJ also reasonably relied on inconsistencies between

13 Malla’s testimony and a letter from an NCP official regarding

14 her family’s farmland. Malla testified that her family had

15 to sell the land to pay for her father’s medical treatments,

16 but a letter from the president of an NCP District Committee

17 stated that the Maoists had taken over the land. The record

18 contradicts Malla’s argument that she testified consistently

19 on this point: she initially testified that the family sold

20 the land to pay medical bills, and she did not mention that

21 Maoists took the land until she was asked to explain the

5 1 discrepancy between her testimony and the letter. The IJ was

2 not required to accept Malla’s explanation that the Maoists

3 took some land and her family sold some land given that her

4 asylum claim was based on a fear of Maoists.

5 Finally, the IJ did not err by giving diminished weight

6 to letters from Malla’s friend, husband, fellow volunteer,

7 and NCP officials because the authors were not subject to

8 cross-examination. See Y.C. v. Holder,

, 332–34

9 (2d Cir. 2013) (holding that “[w]e generally defer to the

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

11 applicant’s documentary evidence” and upholding agency’s

12 decision not to credit a letter from the applicant’s spouse).

13 Moreover, these letters do not rehabilitate Malla’s claim

14 because the authors did not have personal knowledge of her

15 alleged harm, and the letter about the land seizure was

16 inconsistent with her testimony. See Biao Yang v. Gonzales,

17

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

18 corroborate his or her testimony may bear on credibility,

19 because the absence of corroboration in general makes an

20 applicant unable to rehabilitate testimony that has already

21 been called into question.”).

6 1 Given the inconsistencies, omissions, and lack of

2 reliable corroboration, the agency’s adverse credibility

3 determination is supported by substantial evidence. See Xiu

4 Xia Lin,

; Biao Yang,

. The

5 adverse credibility determination is dispositive of asylum,

6 withholding of removal, and CAT relief because all three

7 claims were based on the same factual predicate. See Paul

8 v. Gonzales,

, 156–57 (2d Cir. 2006).

9 For the foregoing reasons, the petition for review is

10 DENIED. All pending motions and applications are DENIED and

11 stays VACATED.

12 FOR THE COURT: 13 Catherine O’Hagan Wolfe, 14 Clerk of Court

7