    13-2390
    Gurung v. Holder
                                                                                  BIA
                                                                           Vomacka, IJ
                                                                          A087 467 399
                                                                          A087 467 400
                        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 17th day of November, two thousand fourteen.

    PRESENT:
             ROBERT A. KATZMANN,
                  Chief Judge,
             DENNY CHIN,
             RAYMOND J. LOHIER, JR.,
                  Circuit Judges.
    _____________________________________

    BINI PRASAD GURUNG, TIKA PRASAD
    GURUNG, AKA TIKA KUMARI,
             Petitioners,

                       v.                                  13-2390
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONERS:              Khagendra Gharti Chhetry, Chhetry &
                                  Associates, P.C., New York, NY.

    FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
                                  General; Carl McIntyre, Assistant
                                  Director; Sharon M. Clay, Trial
                                  Attorney, Office of Immigration
                        Litigation, United States Department
                        of Justice, Washington, D.C.


    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.

    Petitioners Bini and Tika Prasad Gurung, married

natives and citizens of Nepal, seek review of a May 22, 2013

order of the BIA, affirming the January 13, 2012 decision of

an Immigration Judge (“IJ”), which denied asylum,

withholding of removal, and relief under the Convention

Against Torture (“CAT”).   In re Bini Prasad Gurung, Tika

Prasad Gurung, Nos. A087 467 399/400 (B.I.A. May 22, 2013),

aff’g Nos. A087 467 399/400 (Immig. Ct. New York City Jan.

13, 2012).   We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

    Under the circumstances of this case, we review the

decisions of both the IJ and the BIA.   Yun-Zui Guan v.

Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).    The applicable

standards of review are well established.     See 8 U.S.C.

§ 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d

510, 513 (2d Cir. 2009); Xiu Xia Lin v. Mukasey, 534 F.3d

162, 165-66 (2d Cir. 2008) (per curiam).

                              2
    For applications such as Petitioners’, which are

governed by the REAL ID Act, the agency may base a

credibility finding on an applicant’s demeanor, the

plausibility of his account, and inconsistencies in his

statements, without regard to whether they go “to the heart

of the applicant’s claim.”   8 U.S.C. § 1158(b)(1)(B)(iii);

Matter of J-Y-C-, 24 I. & N. Dec. 260, 265 (B.I.A. 2007).

“We defer therefore 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, 534 F.3d at 167.

    Initially, the agency’s credibility determination was

properly based on the inconsistency regarding Bini’s length

of membership in the Nepali Congress Party.   8 U.S.C.

§ 1158(b)(1)(B)(iii).   Bini first testified that he was no

longer a member of the Nepali Congress Party but later

testified that he has remained an active party member.

Although Petitioners argue that Bini merely testified that

he resigned from his position as party ward chief and not

from the party itself, this contention is belied by the

record.




                               3
    The agency’s credibility determination was also

properly based on the inconsistency between Bini’s and

Tika’s testimony about whether Tika received phone calls

from the Maoists after 2001.    8 U.S.C. § 1158(b)(1)(B)(iii).

Bini testified that Tika received threatening phone calls

while he was working in Iraq in 2006; however, Tika

testified that she had not received any calls from the

Maoists since moving to Pokhara in 2001.

    In addition, the agency’s adverse credibility

determination was reasonably based on the inconsistency

regarding the length of Bini’s beating.    8 U.S.C.

§ 1158(b)(1)(B)(iii).   Bini testified that he was beaten for

a half-hour to an hour; however, Tika testified that Bini’s

beating lasted only minutes.    While Petitioners contend that

Bini was referring to the length of the entire incident and

Tika was referring to the duration of the physical attack,

“support for a contrary inference—even one more plausible or

more natural—does not suggest error.” Siewe v. Gonzalez, 480

F.3d 160, 168 (2d Cir. 2007).

    Although Petitioners also contend that the agency

improperly relied on the omission from Bini’s application

statement that he sought medical treatment for his injuries


                                4
from the Maoists’ beating, for purposes of analyzing a

credibility determination, “[a]n inconsistency and an

omission are . . . functionally equivalent.”   Xiu Xia Lin,

534 F.3d at 166.

    Having reasonably called Bini’s credibility into

question, the agency did not err in finding that his failure

to provide sufficient corroborative evidence further

undermined his credibility.   8 U.S.C. § 1158(b)(1)(B)(ii).

We have recognized that an applicant’s failure to

corroborate his testimony may bear on credibility, either

because the absence of particular corroborating evidence is

viewed as suspicious, or because the absence of

corroboration makes an applicant unable to rehabilitate

testimony that has already been called into question.     See

Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (per

curiam).   The agency reasonably accorded diminished weight

to Bini’s medical and party affiliation letters because they

did not describe contemporaneous events and their authors

were unavailable for cross-examination.   See Matter of H-L-H

& Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010), overruled

on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130

(2d Cir. 2012) (according diminished weight to letters

because, inter alia, they did not describe contemporaneous
                              5
events and their authors were unavailable for

cross-examination); Xiao Ji Chen v. U.S. Dep’t of Justice,

471 F.3d 315, 342 (2d Cir. 2006) (holding that the weight

accorded to the applicant’s evidence in immigration

proceedings lies largely within the discretion of the

agency).   Petitioners do not challenge the IJ’s finding that

they failed to provide a corroborative letter from their

daughter in Nepal despite having sufficient time to do so.

    Based on the foregoing, we find that the agency’s

adverse credibility determination is supported by

substantial evidence because it cannot be said “that no

reasonable fact-finder could make such an adverse

credibility ruling.”   Xiu Xia Lin, 534 F.3d at 167.    The

agency therefore did not err in denying asylum, withholding

of removal, and CAT relief because all three claims shared

the same factual predicate.    See Paul v. Gonzales, 444 F.3d

148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of

Justice, 426 F.3d 520, 523 (2d Cir. 2005).

    For the foregoing reasons, the petition for review is

DENIED.

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




                               6
