         13-594
         Gurung v. Holder
                                                                                       BIA
                                                                                  Videla, IJ
                                                                               A099 697 077
                             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 United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 17th day of December, two thousand fourteen.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                ROBERT D. SACK,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _____________________________________
12
13       BIPULA GURUNG,
14                Petitioner,
15
16                          v.                                  13-594
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Julie Mullaney, Mount Kisco, New
24                                     York.
25
26       FOR RESPONDENT:               Stuart F. Delery, Deputy Assistant
27                                     Attorney General; Ernesto H. Molina,
28                                     Assistant Director; Nancy N. Safavi,
29                                     Trial Attorney, Office of
30                                     Immigration Litigation, United
 1                           States Department of Justice,
 2                           Washington, D.C.
 3
 4       UPON DUE CONSIDERATION of this petition for review of a

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

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

 7   is DENIED.

 8       Bipula Gurung, a native and citizen of Nepal, seeks

 9   review of a January 31, 2013, decision of the BIA affirming

10   an Immigration Judge’s (“IJ”) August 31, 2011, denial of her

11   application for asylum, withholding of removal, and relief

12   under the Convention Against Torture (“CAT”).   In re Bipula

13   Gurung, No. A099 697 077 (B.I.A. Jan. 31, 2013), aff’g No.

14   A099 697 077 (Immig. Ct. N.Y. City Aug. 31, 2011).   We

15   assume the parties’ familiarity with the underlying facts

16   and procedural history in this case.

17       Under the circumstances of this case, we have reviewed

18   the IJ’s decision as modified and supplemented by the BIA.

19   See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,

20   522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271

21   (2d Cir. 2005).   The applicable standards of review are well

22   established.   See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

23   Holder, 562 F.3d 510, 513 (2d Cir. 2009).

24       For applications such as Gurung’s, governed by the REAL


                                   2
 1   ID Act of 2005, the agency may, “[c]onsidering the totality

 2   of the circumstances,” base a credibility finding on the

 3   applicant’s “demeanor, candor, or responsiveness,” the

 4   plausibility of her account, and inconsistencies in her

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

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

 7   § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

 8   167 (2d Cir. 2008) (per curiam).   We “defer therefore to an

 9   IJ’s credibility determination unless, from the totality of

10   the circumstances, it is plain that no reasonable fact-

11   finder could make such an adverse credibility ruling.”     Xiu

12   Xia Lin, 534 F.3d at 167.

13       Here, the IJ reasonably based the adverse credibility

14   determination on inconsistencies among (and an omission in)

15   Gurung’s testimony, application, and documentary evidence.

16   As the agency found, the record reflects numerous

17   inconsistencies related to Gurung’s claim that Maoists

18   targeted her based on her political opposition and refusal

19   to fund them.   Gurung testified that she protested Maoists’

20   financial demands at her hotel company’s meeting on

21   political grounds, though her application stated she argued

22   financial hardship, and she ultimately conceded that she had


                                   3
 1   not voiced any political views.   She provided inconsistent

 2   dates for her employment with the hotel and another employer

 3   (Cunard), and when she attended college.   Similarly, it was

 4   questionable whether she was in Nepal when she said she was

 5   kidnapped and assaulted by Maoists: she testified that the

 6   attack happened between August 2004 and February 2005, but

 7   could not explain why her passport contained entries (a

 8   Nepali exit stamp dated August 2004 and a Maltese entry

 9   stamp from November 2004) that place her outside of Nepal

10   during that period.   The particulars of her kidnapping also

11   changed: she testified that a Maoist displayed a gun to her

12   to force her into a private van, but her application states

13   that she was only told about the gun and was taken in a

14   taxi.

15       Gurung’s testimony also conflicted with evidence of her

16   involvement with a pro-democracy student union: (1) she

17   testified that she was the union chairperson, though letters

18   from the union did not so indicate, and she later denied

19   being a chairperson; (2) she testified to joining the union

20   in 1997 and 1996, but the letters indicated both 1995 and

21   1997, and her application stated 1995; (3) she testified

22   that the union letter with the 1997 date was a correction,



                                   4
 1   but both letters reflected the same issue date; and (4) she

 2   testified that she collected the letters, but then stated

 3   that someone else did.    She further undermined her

 4   credibility by testifying that she had declared all her

 5   income in her 2009 and 2010 tax returns, but the returns

 6   reflected less than half of her purported wages.

 7       Gurung has failed to resolve these discrepancies.       She

 8   cited bad memory and ignorance of the tax laws.    The IJ

 9   reasonably expected her to remember important events; and

10   Gurung admitted that she could read English and knew that

11   she made more money than the amount reported for taxes.      See

12   Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005)

13   (holding that an IJ is not required to credit an explanation

14   for an inconsistency unless a reasonable fact finder would

15   be compelled to do so).    Nor was the IJ compelled to credit

16   Gurung’s explanation that a private van and taxi are the

17   same in Nepal because she did not offer this explanation

18   when first confronted with the inconsistency.     See id.   The

19   IJ therefore reasonably relied on these inconsistencies and

20   omission to support the adverse credibility determination.

21   Given that the inconsistencies affect every part of Gurung’s

22   testimony, calling into question not only her allegations of

23   past harm, but whether she was even present in Nepal at the
                                   5
 1   relevant time, the totality of the circumstances supports

 2   the adverse credibility determination.    See 8 U.S.C.

 3   §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d

 4   at 167.   The adverse credibility determination in this case

 5   necessarily precludes success on Gurung’s claims for asylum,

 6   withholding of removal, and CAT relief, because the only

 7   evidence of a threat to Gurung’s life or freedom, or

 8   likelihood of torture, depended upon her credibility and she

 9   did not independently establish eligibility.    Paul v.

10   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

11       For the foregoing reasons, the petition for review is

12   DENIED.   As we have completed our review, any stay of

13   removal that the Court previously granted in this petition

14   is VACATED, and any pending motion for a stay of removal in

15   this petition is DISMISSED as moot.    Any pending request for

16   oral argument in this petition is DENIED in accordance with

17   Federal Rule of Appellate Procedure 34(a)(2), and Second

18   Circuit Local Rule 34.1(b).

19                                 FOR THE COURT:
20                                 Catherine O’Hagan Wolfe, Clerk
21
22




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