     16-511
     Gurung v. Sessions
                                                                                  BIA
                                                                           Vomacka, IJ
                                                                          A201 110 210
                               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 TO 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 6th day of November, two thousand
 5   seventeen.
 6
 7   PRESENT:
 8            JOHN M. WALKER, JR.,
 9            REENA RAGGI,
10            CHRISTOPHER F. DRONEY,
11                 Circuit Judges.
12   _____________________________________
13
14   BIKASH GURUNG,
15            Petitioner,
16
17                        v.                                     16-511
18                                                               NAC
19   JEFFERSON B. SESSIONS III,
20   UNITED STATES ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                      Stuart Altman, Law Office of
25                                        Stuart Altman, New York, N.Y.
26
27   FOR RESPONDENT:                      Benjamin C. Mizer, Principal
28                                        Deputy Assistant Attorney General;
29                                        Anthony P. Nicastro, Assistant
30                                        Director; Yanal H. Yousef, Trial
31                                        Attorney, Office of Immigration
1                               Litigation, United States
2                               Department of Justice, Washington,
3                               D.C.
4
5        UPON DUE CONSIDERATION of this petition for review of a

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

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

8    is DENIED.

9        Petitioner Bikash Gurung, a native and citizen of Nepal,

10   seeks review of a January 27, 2016, decision of the BIA

11   affirming an August 21, 2014, decision of an Immigration Judge

12   (“IJ”) denying Gurung’s application for asylum, withholding

13   of removal, and relief under the Convention Against Torture

14   (“CAT”).   In re Bikash Gurung, No. A201 110 210 (B.I.A. Jan.

15   27, 2016), aff’g No. A201 110 210 (Immig. Ct. N.Y. City Aug.

16   21, 2014).    We assume the parties’ familiarity with the

17   underlying facts and procedural history in this case.

18       Under the circumstances of this case, we have reviewed

19   both the BIA’s and IJ’s decisions.      See Yun-Zui Guan v.

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

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

22   § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-

23   66 (2d Cir. 2008).

24


                                   2
1        The governing REAL ID Act credibility standard provides

2    that the agency must “[c]onsider[] the totality of the

3    circumstances,” and may base a credibility finding on an

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

5    plausibility of his account, and inconsistencies in his or

6    his witness’s statements, “without regard to whether” they

7    go “to the heart of the applicant’s claim.” 8 U.S.C.

8    § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. “We

9    defer . . . to an IJ’s credibility determination unless,

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

11   reasonable fact-finder could make such an adverse

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

13   Further, “[a] petitioner must do more than offer a

14   plausible explanation for his inconsistent statements to

15   secure relief; he must demonstrate that a reasonable fact-

16   finder would be compelled to credit his testimony.” Majidi

17   v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (internal

18   quotations marks omitted). For the reasons that follow, we

19   conclude that substantial evidence supports the agency’s

20   determination that Gurung was not credible.

21       First, the agency did not err by relying on Gurung’s

22   credible fear interview record. We have held that a credible


                                   3
1    fear interview warrants “close examination” because it may

2    “be perceived as coercive” by the alien or fail to “elicit

3    all of the details supporting an asylum claim.”       Ming Zhang

4    v. Holder, 585 F.3d 715, 724 (2d Cir. 2009).      Nevertheless,

5    “[w]here the record of a credible fear interview displays the

6    hallmarks of reliability, it appropriately can be considered

7    in assessing an alien’s credibility.”      Id. at 725.   Some of

8    those hallmarks are that the interview was memorialized in a

9    typewritten document, was conducted through an interpreter,

10   and asked questions designed to elicit a possible asylum

11   claim.   Id.    The   agency   correctly   observed   that    those

12   hallmarks were present here. A Nepalese interpreter was used.

13   The interviewer asked questions designed to elicit an asylum

14   and CAT claim (e.g., why Gurung left Nepal, why he feared the

15   Maoists, whether he was ever physically harmed, and whether

16   he feared anyone in the Nepalese government or anyone acting

17   with the consent of a public official).       The questions and

18   answers were memorialized in a typewritten document.         And at

19   no point did Gurung demonstrate difficulty answering the

20   interviewer’s questions.   Although Gurung contends that his

21   interview record is unreliable because he was scared, we have

22   repeatedly “reject[ed] the notion that a petitioner’s claim


                                    4
1    that []he was nervous and distracted during the credible fear

2    interview automatically undermines or negates its reliability

3    as a source of h[is] statements.” Id. Because the record of

4    the interview is reliable, the agency was entitled to consider

5    it in assessing Gurung’s credibility.

6           Second,    the     agency    reasonably        relied      on     the

7    inconsistencies        among   Gurung’s    credible    fear    interview

8    statements, testimony, and asylum application about whether

9    he was kidnapped in Kathmandu in 2010.           See Xiu Xia Lin, 534

10   F.3d at 163-64, 166 n.3.         Gurung stated during his credible

11   fear interview that there was no real incident after the April

12   2008    attack;   he    also   responded    only     that   the    Maoists

13   threatened his parents when asked if he had any problems in

14   Kathmandu.        However,     Gurung     provided     in   his        asylum

15   application and testimony that he was kidnapped by Maoists

16   from a hotel in Kathmandu in 2010, transported by van to a

17   safe house 45 minutes away, beaten with rods and kicked in

18   his face, and later woke up in the hospital. When confronted

19   with these discrepancies, Gurung responded that he could not

20   tell his full story during the interview because he was

21   anxious and fearful. The IJ was not compelled to accept this

22   explanation because Gurung gave detailed answers about the


                                         5
1    other incidents with the Maoists during his interview and

2    this was the most serious incident.              See Majidi, 430 F.3d at

3    80.

4           Third, the agency reasonably relied on the inconsistency

5    between       Gurung’s    credible    fear   interview   statements   and

6    testimony about whether he was threatened during the April

7    2008 attack.       See Xiu Xia Lin, 534 F.3d at 163-64.            Gurung

8    was asked during his credible fear interview whether his

9    attackers said anything while they were beating him, and he

10   responded: “[t]hey didn’t say a thing[,] all of a sudden they

11   came    and    attacked    me.”      Certified    Administrative   Record

12   (“CAR”) at 294. Gurung testified, however, that his attackers

13   told him that they were “going to kill [him] right here.”

14   Id. at 106.         When asked about this discrepancy, Gurung

15   explained that he could not tell the whole story during his

16   interview and was not in his right mind at the time because

17   he was in a jail. The IJ reasonably rejected this explanation

18   because Gurung gave detailed answers throughout the interview

19   and did not indicate that he had trouble answering the

20   questions. See Majidi, 430 F.3d at 80.

21          Fourth,     the    agency     reasonably    relied   on   Gurung’s

22   testimonial inconsistencies regarding how his father obtained


                                            6
1    the medical records that he submitted to the IJ. See Xiu Xia

2    Lin, 534 F.3d at 163-64.        Gurung testified that he asked his

3    father for the medical records when he was preparing his

4    application and that his father subsequently obtained them

5    from the clinic where Gurung was treated. However, after the

6    government attorney expressed confusion as to why the records

7    contained receipts and medication prescriptions, which one

8    might expect to find in hospital discharge papers but not

9    copies   of   medical   records   obtained     years’     later,    Gurung

10   changed his testimony and stated that his father sent the

11   records from his home in Nepal and that there were no records

12   that his father needed to obtain from the clinic. When asked

13   about this discrepancy, Gurung explained that he meant that

14   this father brought the records with him from the medical

15   facilities    and   that   he   did    not   understand    the     earlier

16   question. The IJ was not compelled to accept this explanation

17   because it was inconsistent with Gurung’s prior testimony and

18   did not resolve the inconsistency.           See Majidi, 430 F.3d at

19   80.

20         Fifth, the agency reasonably relied on the

21   inconsistencies between Gurung’s credible fear interview

22   statements and testimony regarding why he failed to report


                                        7
1    any incident with the Maoists to the Nepalese police.

2    During his credible fear interview, Gurung stated that it

3    was “[b]ecause [he] was a worker of the party and [he]

4    didn’t seek help from the[] [police]” and that “[he] did

5    not go to seek out the protection of the police because

6    [he] was involved with the party matters.” CAR at 296. At

7    his hearing, however, Gurung testified that he did not

8    report the attacks to the police because the Maoists “would

9    [have] target[ed] [him] more” and there would have been

10   “more danger to [his] life.” Id. at 109-10, 114. When

11   asked to explain the discrepancy, Gurung responded that he

12   did not tell the full story during his interview and he was

13   not aware of what was going on. The IJ was not required to

14   credit this explanation, which did not compellingly resolve

15   the inconsistency. See Majidi, 430 F.3d at 80.

16       Finally, we reject Gurung’s argument that the IJ ignored

17   his corroborating letters from his father and friends and

18   documents that support his political party membership.            See

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

20   applicant’s failure to corroborate testimony may bear on

21   credibility,   either   because       the   absence   of   particular

22   evidence is viewed as suspicious, or “because the absence of


                                       8
1    corroboration         in    general   makes         an   applicant     unable    to

2    rehabilitate testimony that has already been called into

3    question.”).         The agency need not “expressly parse or refute

4    on the record each individual argument or piece of evidence

5    offered    by    the       petitioner,”      Wei     Guang     Wang   v.   Bd.   of

6    Immigration      Appeals,       437   F.3d     270,      275   (2d    Cir.    2006)

7    (internal quotation marks omitted), and “we presume that an

8    IJ has taken into account all of the evidence before him,

9    unless the record compellingly suggests otherwise,” Xiao Ji

10   Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d

11   Cir. 2006). Nevertheless, “[w]e also require some indication

12   that   the      IJ    considered      material       evidence     supporting     a

13   petitioner’s claim.”          Poradisova v. Gonzales, 420 F.3d 70, 77

14   (2d Cir. 2005). Here, while the IJ did not make a particular

15   determination as to the weight of every piece of Gurung’s

16   corroborating evidence, the IJ stated that he considered

17   Gurung’s     evidence,        observed       that    the    letters    were   from

18   interested witnesses not subject to cross examination, and

19   concluded       that        Gurung    did       not        provide     sufficient

20   corroboration to rehabilitate his credibility.                        Gurung does

21   not address these conclusions, which were reasonable, and the

22   record contains sufficient indication that the IJ considered


                                              9
1    Gurung’s corroborating evidence.           See In re H-L-H- & Z-Y-Z-,

2    25 I. & N. Dec. 209, 215 (B.I.A. 2010) (giving diminished

3    weight to letters from relatives because they were from

4    interested witnesses not subject to cross-examination), rev’d

5    on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d

6    Cir. 2012); Xiao Ji Chen, 471 F.3d at 337 n.17, 342 (observing

7    that    the    weight    accorded   to    an   applicant’s   documentary

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

9           Given   the      foregoing   inconsistencies    among    Gurung’s

10   testimony, asylum application, and credible fear interview

11   statements, the totality of the circumstances supports the

12   credibility ruling.          Xiu Xia Lin, 534 F.3d at 165-66.          A

13   reasonable adjudicator would not be compelled to conclude

14   otherwise.       Id. at 167.        And, despite Gurung’s protests

15   otherwise, the credibility finding is dispositive of asylum,

16   withholding of removal, and CAT relief because all three

17   claims are based on the same factual predicate.              See Paul v.

18   Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

19          For the foregoing reasons, the petition for review is

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

21   that the Court previously granted in this petition is VACATED,

22   and any pending motion for a stay of removal in this petition


                                          10
1   is DISMISSED as moot.   Any pending request for oral argument

2   in this petition is DENIED in accordance with Federal Rule of

3   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

4   34.1(b).

5                               FOR THE COURT:
6                               Catherine O’Hagan Wolfe, Clerk




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