         12-1833
         Samdup v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A087 469 108
                             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 13th day of March, two thousand fourteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                GERARD E. LYNCH,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       KUNCHOK SAMDUP,
14                Petitioner,
15
16                          v.                                  12-1833
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Steven J. Kolleeny, New York, NY.
24
25       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
26                                     General; Lyle D. Jentzer, Senior
27                                     Litigation Counsel; Paul F. Stone,
28                                     Trial Attorney, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice,
31                                     Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   is DENIED.

 5       Petitioner Kunchok Samdup, an alleged native of Tibet

 6   and citizen of China, seeks review of an April 5, 2012,

 7   order of the BIA, affirming the March 31, 2011, decision of

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

 9   withholding of removal, and relief under the Convention

10   Against Torture (“CAT”).   In re Kunchok Samdup, No. A087 469

11   108 (B.I.A. Apr. 5, 2012), aff’g No. A087 469 108 (Immig.

12   Ct. New York City Mar. 31, 2011).   We assume the parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15       Under the circumstances of this case, we review the

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

17   Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam).

18   The applicable standards of review are well established.

19   See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v.

20   Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam).

21       For applications such as Samdup’s, which are governed

22   by the REAL ID Act, the agency may base a credibility

23   finding on an applicant’s demeanor, the plausibility of his

                                   2
 1   account, and inconsistencies in his statements, without

 2   regard to whether they go “to the heart of the applicant’s

 3   claim.”   8 U.S.C. § 1158(b)(1)(B)(iii).   We “defer to an

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

 5   the circumstances, it is plain that no reasonable

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

 7   Xiu Xia Lin, 534 F.3d at 167.

 8       Samdup does not challenge the agency’s finding that he

 9   testified inconsistently with his application concerning the

10   length of his father’s detention and whether he had hung

11   pro-Tibetan posters in 2002.    Instead, he contends that

12   these inconsistencies were an improper basis for the IJ’s

13   credibility determination because they are not material to

14   his claim.   Under the REAL ID Act, however, an IJ may rely

15   on inconsistencies that are “not directly material” to an

16   applicant’s claim where “the cumulative effect of those

17   inconsistencies reasonably could have affected the IJ’s

18   [credibility] evaluation.”     Xiu Xia Lin, 534 F.3d at 167.

19   Moreover, the IJ’s credibility determination was not

20   exclusively based on these inconsistencies and was further

21   buttressed by the insufficiency of Samdup’s corroborative

22   evidence and the omission of his high blood pressure and


                                     3
 1   blood sugar, which he testified was caused by his

 2   mistreatment in China, from his doctor’s affidavit.

 3   Samdup’s assertion that the agency improperly relied on the

 4   omission from his doctor’s affidavit, because omissions are

 5   treated differently than inconsistencies for the purpose of

 6   the credibility finding, is incorrect.    See Xiu Xia Lin, 534

 7   F.3d at 166 (providing that, for purposes of analyzing a

 8   credibility determination, “[a]n inconsistency and an

 9   omission are . . . functionally equivalent”).   Accordingly,

10   Samdup has failed to show that the identified

11   inconsistencies and omission were an improper basis for the

12   IJ’s adverse credibility determination.    See Xiu Xia Lin,

13   534 F.3d at 167; see also Tu Lin v. Gonzales, 446 F.3d 395,

14   402 (2d Cir. 2006).

15       Having called Samdup’s credibility into question, the

16   agency reasonably determined that his failure to present

17   sufficient corroborative evidence further undermined his

18   credibility.   See 8 U.S.C. § 1158(b)(1)(B)(ii) (providing

19   that “[t]he testimony of the applicant may be sufficient to

20   sustain the applicant’s burden without corroboration, but

21   only if the applicant satisfies the trier of fact that the

22   applicant’s testimony is credible, is persuasive, and refers


                                  4
 1   to specific facts sufficient to demonstrate that the

 2   applicant is a refugee” (emphasis added)); see also Xiao Ji

 3   Chen v. US Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.

 4   2006) (noting that the weight accorded to the applicant’s

 5   evidence lies largely within the discretion of the agency).

 6   We have recognized that an applicant’s failure to

 7   corroborate his testimony may bear on credibility, either

 8   because the absence of particular corroborating evidence is

 9   viewed as suspicious, or because the absence of

10   corroboration makes an applicant unable to rehabilitate

11   testimony that has already been called into question.        See

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

13   curiam).

14       Contrary to Samdup’s assertion, the agency did not err

15   in according his uncle and brother’s letters diminished

16   weight because they were from interested witnesses not

17   subject to cross examination.       See Matter of H-L-H- &

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

19   letters from applicant’s relatives and friends because they

20   were “interested witnesses not subject to

21   cross-examination”), overruled in part on other grounds by

22   Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012).        In

23   any event, Samdup fails to challenge the agency’s
                                     5
 1   determination that these letters were insufficient to

 2   rehabilitate his credibility because they omitted any

 3   reference to his father’s detention and related death.

 4   Samdup also asserts that the agency erred in according the

 5   one-page translation of his 1997 household registry

 6   diminished weight.   However, he fails to challenge the

 7   agency’s finding that the registry’s listing of his sibling

 8   as the head of household contradicted his testimony that his

 9   father had died from his detention related injuries in 2001

10   and, therefore, did not rehabilitate his credibility.     The

11   agency also did not err in declining to credit Samdup’s

12   letters from the Office of Tibet and Tibetan Tehor

13   Association, which indicated that he was a Tibetan refugee,

14   because Samdup failed to submit the underlying documentation

15   upon which the letters’ representation of Tibetan refugee

16   status was based.    Xiao Ji Chen, 471 F.3d at 342.

17   Similarly, contrary to Samdup’s assertion, the agency’s

18   failure to explicitly discuss his letter from the NYU

19   Program for Survivors of Torture does not compellingly

20   suggest that it was ignored because the letter merely

21   indicated, without elaboration, that Samdup had been

22   admitted to the program.    See Xiao Ji Chen, 471 F.3d at 337

23   n.17 (presuming that the agency “has taken into account all
                                    6
 1   of the evidence before [it], unless the record compellingly

 2   suggests otherwise”); Zhi Yun Gao v. Mukasey, 508 F.3d 86,

 3   87 (2d Cir. 2007) (noting that the agency is not required to

 4   expressly “parse or refute on the record each individual

 5   argument or piece of evidence offered by the petitioner”).

 6   Finally, Samdup takes issue with the IJ’s finding that his

 7   doctor’s affidavit and medical photographs were insufficient

 8   to overcome the issues with his inconsistent testimony and

 9   other corroborative evidence.       However, as we have

10   previously found, where there are two permissible views of

11   the evidence, the fact-finder’s choice between them does not

12   suggest error.    See Siewe v. Gonzales, 480 F.3d 160, 167 (2d

13   Cir. 2007).

14       The agency also did not err in failing to independently

15   assess Samdup’s CAT claim based solely on his status as an

16   ethnic Tibetan.   We have recognized that an applicant whose

17   claims of past persecution were found not credible may

18   nevertheless establish eligibility for CAT relief through

19   objective evidence.    See Paul v. Gonzales, 444 F.3d 148, 156

20   (2d Cir. 2006).   However, even assuming that Samdup had

21   independently established his status as an ethnic Tibetan,

22   he failed to support his application with any State

23   Department Reports or other objective evidence of conditions
                                     7
 1   for ethnic Tibetans in China.       We decline Samdup’s

 2   invitation to take judicial notice of the relevant State

 3   Department reports because our review is limited to the

 4   administrative record.   See Xiao Xing Ni v. Gonzales, 494

 5   F.3d 260, 269 (2d Cir. 2007); 8 U.S.C. § 1252(b)(4)(A)

 6   (providing that “the court of appeals shall decide the

 7   petition only on the administrative record on which the

 8   order of removal is based”).

 9       For the foregoing reasons, the petition for review is

10   DENIED.   As we have completed our review, Samdup’s motion

11   for a stay of removal in this petition is DENIED as moot.

12   Samdup’s request for oral argument is DENIED in accordance

13   with Federal Rule of Appellate Procedure 34(a)(2), and

14   Second Circuit Local Rule 34.1(b).

15                               FOR THE COURT:
16                               Catherine O’Hagan Wolfe, Clerk
17
18




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