Timalsina v. Garland
Timalsina v. Garland
Opinion
20-3168 Timalsina v. Garland BIA Lurye, IJ A208 927 879 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 19th day of December, two thousand twenty- 5 two. 6 7 PRESENT: 8 JON O. NEWMAN, 9 MICHAEL H. PARK, 10 EUNICE C. LEE, 11 Circuit Judges. 12 _____________________________________ 13 14 NAGENDRA PRASAD TIMALSINA, 15 Petitioner, 16 17 v. 20-3168 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 1 FOR PETITIONER: Khagendra Gharti-Chhetry, New 2 York, NY. 3 4 FOR RESPONDENT: Brian Boynton, Acting Assistant 5 Attorney General; Justin R. 6 Markel, Paul Fiorino, Senior 7 Litigation Counsel, Office of 8 Immigration Litigation, United 9 States Department of Justice, 10 Washington, DC.
11 UPON DUE CONSIDERATION of this petition for review of a
12 Board of Immigration Appeals (“BIA”) decision, it is hereby
13 ORDERED, ADJUDGED, AND DECREED that the petition for review
14 is DENIED.
15 Petitioner Nagendra Prasad Timalsina, a native and
16 citizen of Nepal, seeks review of an August 26, 2020 decision
17 of the BIA affirming an August 16, 2018 decision of an
18 Immigration Judge (“IJ”) denying his application for asylum,
19 withholding of removal, and relief under the Convention
20 Against Torture (“CAT”). In re Nagendra Prasad Timalsina,
21 No. A208-927-879 (B.I.A. Aug. 26, 2020), aff’g No. A208-927-
22 879 (Immigr. Ct. N.Y.C. Aug. 16, 2018). We assume the
23 parties’ familiarity with the underlying facts and procedural
24 history.
25 The BIA afirmed without an opinion, so we review the IJ’s
26 decision directly. Twum v. INS,
411 F.3d 54, 58(2d Cir.
2 1 2005). The applicable standards of review are well
2 established. See
8 U.S.C. § 1252(b)(4)(B) (“[T]he
3 administrative findings of fact are conclusive unless any
4 reasonable adjudicator would be compelled to conclude to the
5 contrary.”); Hong Fei Gao v. Sessions,
891 F.3d 67, 76(2d
6 Cir. 2018) (reviewing adverse credibility determination under
7 “substantial evidence” standard).
8 “Considering the totality of the circumstances, and all
9 relevant factors, a trier of fact may base a credibility
10 determination on” the “consistency between the
11 applicant’s . . . written and oral statements (whenever made
12 and whether or not under oath, and considering the
13 circumstances under which the statements were made), the
14 internal consistency of each such statement, [and] the
15 consistency of such statements with other evidence of record”
16 without “regard to whether an inconsistency, inaccuracy, or
17 falsehood goes to the heart of the applicant’s claim, or any
18 other relevant factor.”
8 U.S.C. § 1158(b)(1)(B)(iii). “We
19 defer . . . to an IJ’s credibility determination
20 unless . . . it is plain that no reasonable fact-finder could
21 make such an adverse credibility ruling.” Xiu Xia Lin v.
3 1 Mukasey,
534 F.3d 162, 167(2d Cir. 2008); accord Hong Fei
2 Gao,
891 F.3d at 76.
3 Timalsina alleged that members of Nepal’s Communist Party
4 (“Maoists”) attacked and threatened him because of his
5 membership and involvement in the Nepali Congress Party
6 (“NCP”). Substantial evidence supports the agency’s adverse
7 credibility determination. The agency reasonably relied on
8 inconsistencies among Timalsina’s testimony, interview
9 statements, and documentary evidence. See 8 U.S.C.
10 § 1158(b)(1)(B)(iii).
11 As an initial matter, the agency did not err in
12 concluding that the interview record was reliable. The
13 interview was memorialized in a typed document that appears
14 to list verbatim 127 questions and Timalsina’s responses, and
15 it was conducted through an interpreter in Timalsina’s native
16 language. Moreover, the interviewer asked follow-up
17 questions to elicit the details of an asylum claim, and
18 Timalsina stated that he understood all the questions he was
19 asked. He had opportunities to clarify his responses, and
20 there was no indication that he was reluctant to provide
21 information given his responsive and detailed answers. See
4 1 Ming Zhang v. Holder,
585 F.3d 715, 724(2d Cir. 2009) (“Where
2 the record of a credible fear interview displays the hallmarks
3 of reliability, it appropriately can be considered in
4 assessing an alien’s credibility.”).
5 The inconsistencies identified by the agency support the
6 adverse credibility determination. Timalsina was
7 inconsistent regarding an alleged attack. He testified that
8 it occurred on the evening of November 10, 2013, that he went
9 to the hospital before going home and was treated that night,
10 and that he went to the police once to report the attack.
11 But the interview record and documentary evidence—
12 specifically, medical records and a letter from his wife—
13 separately indicate that the attack was in 2017 instead of
14 2013; that the medical treatment was in the morning and not
15 at night; that Timalsina went home before going to the
16 hospital, rather than the other way around; and that he went
17 to the police not once, but twice. The record reflects
18 further inconsistency between his testimony and interview
19 statements about whether the police said they would act on
20 his complaint.
5 1 The IJ was not required to credit Timalsina’s
2 explanations that he did not understand the questions and
3 that he was confused during the interview. See Majidi v.
4 Gonzales,
430 F.3d 77, 80(2d Cir. 2005) (“A petitioner must
5 do more than offer a plausible explanation for his
6 inconsistent statements to secure relief; he must demonstrate
7 that a reasonable fact-finder would be compelled to credit
8 his testimony.” (cleaned up)).
9 The agency also reasonably concluded that Timalsina
10 failed to rehabilitate his testimony with corroborating
11 evidence. See Biao Yang v. Gonzales,
496 F.3d 268, 273(2d
12 Cir. 2007) (“An applicant’s failure to corroborate his or her
13 testimony may bear on credibility, because the absence of
14 corroboration in general makes an applicant unable to
15 rehabilitate testimony that has already been called into
16 question.”). The agency was thus not required to credit
17 supporting letters and medical records. The letters were
18 from interested parties or parties that were unavailable for
19 cross-examination, and, as noted above, the letter from
20 Timalsina’s wife and his medical records were inconsistent
21 with his version of events. See Y.C. v. Holder,
741 F.3d 61 324, 332 (2d Cir. 2013) (“We generally defer to the agency’s
2 evaluation of the weight to be afforded an applicant’s
3 documentary evidence.”); see Likai Gao v. Barr,
968 F.3d 137,
4 149 (2d Cir. 2020).
5 Given the multiple inconsistencies and lack of reliable
6 corroboration, substantial evidence supports the adverse
7 credibility determination. See Xiu Xia Lin,
534 F.3d at 167;
8 Biao Yang,
496 F.3d at 273. The agency’s adverse credibility
9 determination is dispositive because Timalsina’s claims for
10 asylum, withholding of removal, and CAT relief were all based
11 on the same factual predicate. See Paul v. Gonzales, 444
12 F.3d 148, 156–57 (2d Cir. 2006).
13 For the foregoing reasons, the petition for review is
14 DENIED. All pending motions and applications are DENIED and
15 stays VACATED.
16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, 18 Clerk of Court 19
7
Reference
- Status
- Unpublished