         12-4634
         Gurung v. Holder
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A087 481 205
                             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 4th day of December, two thousand thirteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                SUSAN L. CARNEY,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       JAMYANG GURUNG,
14                Petitioner,
15
16                          v.                                  12-4634
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Marie Licelle R. Cobrador, Jackson
24                                     Heights, New York.
25
26       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
27                                     Attorney General; Jennifer L.
28                                     Lightbody, Senior Litigation
29                                     Counsel; Laura M.L. Maroldy, Trial
30                                     Attorney, Office of Immigration
31                                     Litigation, United States Department
32                                     of Justice, 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 GRANTED in part and DENIED in part.

 5       Jamyang Gurung, a native and citizen of Nepal, seeks

 6   review of an October 22, 2012, decision of the BIA affirming

 7   the October 15, 2010, decision of Immigration Judge (“IJ”)

 8   Sandy K. Hom, which pretermitted his application for asylum

 9   and denied his application for withholding of removal and

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

11   Jamyang Gurung, No. A087 481 205 (B.I.A. Oct. 22, 2012),

12   aff’g No. A087 481 205 (Immig. Ct. N.Y. City Oct. 15, 2010).

13   We assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15       Because the BIA’s primary basis for denying withholding

16   of removal was the IJ’s adverse credibility determination,

17   though the IJ did not entirely reject Gurung’s testimony and

18   denied relief only after making an additional burden

19   finding, we have reviewed the decision of the IJ as modified

20   and supplemented by the BIA.   See Yan Chen v. Gonzales, 417

21   F.3d 268, 271 (2d Cir. 2005); Xue Hong Yang v. U.S. Dep’t of

22   Justice, 426 F.3d 520, 522 (2d Cir. 2005).   The applicable

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

                                    2
 1   § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d

 2   510, 513 (2d Cir. 2009).

 3       As an initial matter, we lack jurisdiction to review

 4   the pretermission of Gurung’s asylum application because his

 5   assertion that the agency erred in finding that he

 6   established neither changed nor extraordinary circumstances

 7   does not raise a reviewable constitutional claim or question

 8   of law.   See 8 U.S.C. § 1252(a)(2)(C),(D).   Moreover, Gurung

 9   failed to exhaust CAT relief, see Karaj v. Gonzales, 462

10   F.3d 113, 119 (2d Cir. 2006), so we consider only

11   withholding of removal.

12       For applications such as Gurung’s, governed by the

13   amendments made to the Immigration and Nationality Act by

14   the REAL ID Act of 2005, the agency may, considering the

15   totality of the circumstances, base a credibility finding on

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

17   plausibility of her account, and inconsistencies in her

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

19   of the applicant’s claim.”   See 8 U.S.C. § 1231(b)(3)(C);

20   Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).

21   We will “defer to an IJ’s credibility determination unless,

22   from the totality of the circumstances, it is plain that no


                                   3
 1   reasonable fact-finder could make” such a ruling.      Xiu Xia

 2   Lin, 534 F.3d at 167.   The agency’s adverse credibility

 3   determination here is not supported by substantial evidence.

 4       The IJ based his adverse credibility determination on

 5   the following inconsistencies between Gurung’s testimony and

 6   asylum application: (1) Gurung’s testimony that Maoists

 7   visited him in 2002 and 2003 and attacked him in August

 8   2004, though his application states that he was visited in

 9   March 2004 and attacked in July 2004; (2) his testimony that

10   he was attacked by four or five men who he believed had a

11   sharp object or gun and hit him with a riding crop, though

12   his application states that there were six men who

13   brandished a chain knife and rope and hit him with a long

14   stick; and (3) his testimony that he was only bruised on his

15   shoulders by the stick, though his application states he was

16   hit in the face with the stick causing a nose bleed.     Gurung

17   testified tentatively as to the types of weapons carried by

18   his assailants, stating twice that it was dark, that the men

19   were in a large group, and that he was hit only with the

20   long stick.   However, the IJ did not consider these

21   explanations in determining whether it accounted for

22   Gurung’s confusion as to the number of men and types of


                                   4
 1   weapons.   This failure constitutes error.   See Beskovic v.

 2   Gonzales, 467 F.3d 223, 227 (2d Cir. 2006) (requiring a

 3   certain minimal level of analysis from agency decisions

 4   denying relief from removal to enable meaningful judicial

 5   review).

 6       Further, both the IJ and the BIA mischaracterize the

 7   weapon used to hit Gurung.   Although Gurung consistently

 8   described the weapon as a long stick in his testimony and

 9   application, the IJ described the weapon as a “riding crop”

10   and the BIA misstated Gurung’s application as indicating

11   that he was hit with the chain knife.   Based on this

12   misstatement, the BIA erroneously found an inconsistency

13   with Gurung’s testimony that he was hit with a stick.     The

14   BIA also incorrectly stated that Gurung testified that he

15   was traveling to Pokhara when stopped by the Maoists.     To

16   the contrary, Gurung did not testify to his original

17   destination.   Rather, both his testimony and application

18   indicate that he escaped to a neighboring village after the

19   attack and, from there, went to Pokhara.

20       Excluding consideration of these flawed findings, the

21   IJ’s adverse credibility determination rested only on the

22   date discrepancies, which the IJ found were not fatal to

23   Gurung’s claim, and the inconsistencies regarding the
                                   5
 1   injuries Gurung sustained.   Because these two

 2   inconsistencies do not constitute substantial evidence

 3   supporting the adverse credibility determination, the agency

 4   erred in denying withholding of removal on that basis.        See

 5   8 U.S.C. § 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d at 167.

 6       The BIA alternatively denied withholding based on

 7   Gurung’s failure to establish that he was targeted based on

 8   a statutorily protected ground.   Withholding eligibility

 9   requires that the persecution an applicant suffered or fears

10   be on account of his race, religion, nationality, political

11   opinion, or particular social group.     8 U.S.C.

12   § 1231(b)(3)(A).   Here, the agency considered only whether

13   Gurung established his membership in a particular social

14   group and not whether he was targeted based on his political

15   opinion due to his Nepali Congress Party activities, despite

16   his testimony and arguments on appeal that he was attacked

17   because he did not quit the party.     Because the agency’s

18   alternative basis for denying withholding is also erroneous

19   for failing to address Gurung’s argument, see Beskovic, 467

20   F.3d at 227, there is a realistic possibility that, absent

21   the errors in the adverse credibility determination, the

22   agency would have reached a different conclusion.     Remand

23   for reconsideration of Gurung’s application for withholding
                                   6
 1   of removal is therefore not futile.    See Alam v. Gonzales,

 2   438 F.3d 184, 187-88 (2d Cir. 2006).

 3       For the foregoing reasons, the petition for review is

 4   GRANTED in part, with regard to withholding of removal, and

 5   DENIED to the extent it challenges the denial of asylum and

 6   CAT relief.   As we have completed our review, any stay of

 7   removal that the Court previously granted in this petition

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

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

10   oral argument in this petition is DENIED in accordance with

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

12   Circuit Local Rule 34.1(b).

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




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