     16-1098
     Panthi v. Sessions
                                                                                         BIA
                                                                               Christensen, IJ
                                                                               A205 239 154
                               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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   3rd day of October, two thousand seventeen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            PIERRE N. LEVAL,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   SUMAN PANTHI,
14            Petitioner,
15
16                        v.                                         16-1098
17                                                                   NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                      Stuart Altman, New York, NY.
24
25   FOR RESPONDENT:                      Joyce R. Branda, Acting Assistant
26                                        Attorney General, Greg D. Mack,
27                                        Senior Litigation Counsel,
28                                        Christina P. Greer, Trial Attorney,
29                                        Office of Immigration Litigation,
30                                        United States Department of Justice,
31                                        Washington, DC.
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 is

4    DENIED.

5        Petitioner Suman Panthi, a native and citizen of Nepal,

6    seeks review of a March 14, 2016, decision of the BIA affirming

7    a January 6, 2015, decision of an Immigration Judge (“IJ”)

8    denying    Panthi’s    application     for   asylum,    withholding     of

9    removal, and relief under the Convention Against Torture

10   (“CAT”).    In re Suman Panthi, No. A205 239 154 (B.I.A. Mar. 14,

11   2016), aff’g No. A205 239 154 (Immig. Ct. N.Y. City Jan. 6,

12   2015).    We assume the parties’ familiarity with the underlying

13   facts and procedural history in this case.

14       Under the circumstances of this case, we have reviewed both

15   the BIA’s and IJ’s decisions.          See Yun-Zui Guan v. Gonzales,

16   432 F.3d 391, 394 (2d Cir. 2005).        The standards of review are

17   well established.      See 8 U.S.C. § 1252(b)(4); Xiu Xia Lin v.

18   Mukasey, 534 F.3d 162, 165 (2d Cir. 2008).

19       The    agency     may,   “[c]onsidering    the     totality   of   the

20   circumstances,” base a credibility finding on the plausibility

21   of an applicant’s account or inconsistencies in her statements
                                        2
1    and other record evidence with or “without regard to whether”

2    those inconsistencies go “to the heart of the applicant’s

3    claim.”       8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d

4    at    163-64.        Substantial      evidence    supports    the     agency’s

5    determination that Panthi was not credible.

6          1.       The    agency    reasonably       determined    that     Panthi

7    undermined her credibility when she could not identify                   other

8    members of the Nepali Congress Party (“NCP”) who had been

9    attacked in the same incident.              When asked specifically about

10   a    fellow    NCP   member    who,    according    to   Panthi’s     written

11   statement, was killed that night, she explained that she thought

12   the original question referred only to senior NCP members.                  But

13   the original question contained no reference to rank or

14   seniority, and the agency was not required to credit her

15   explanation.         See Majidi, 430 F.3d at 80.             Even after the

16   question was clarified, Panthi could not name the other NCP

17   members who were harmed, including the one who submitted a

18   letter in support of Panthi’s asylum application.                   The agency

19   reasonably       found   that    this       contradiction     and    lack    of

20   familiarity with her own evidence impaired her credibility.

21   See Zhou Yun Zhang v. U.S. INS, 386 F.3d 66, 74 (2d Cir. 2004)
                                             3
1    overruled on other grounds by Shi Liang Lin v. U.S. Dep’t of

2    Justice, 494 F.3d 296 (2d Cir. 2007).

3           2.   The agency reasonably relied on inconsistencies

4    between Panthi’s written statement and testimony, on one hand,

5    and letters from fellow NCP members, on the other.                Panthi

6    testified that she was attacked while she was alone, having

7    separated from other NCP members; a letter from fellow NCP

8    member indicates that they were attacked as a group.                   The

9    agency’s inference is tied to the language of the letters and

10   we cannot make an inference to the contrary.               See Siewe v.

11   Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007) (affording

12   deference to the agency’s inference so long as it is “tethered

13   to the evidentiary record” and explaining that “record support

14   for a contrary inference—even one more plausible or more

15   natural—does not suggest error”).

16          Finally, Panthi challenges the agency’s treatment of her

17   corroborating evidence.       Letters from fellow NCP members that

18   were    inconsistent   with    her       version   of   events   did   not

19   rehabilitate her testimony.          See Biao Yang v. Gonzales, 496

20   F.3d 268, 273 (2d Cir. 2007) (“An applicant’s failure to

21   corroborate his or her testimony may bear on credibility,
                                          4
1    because the absence of corroboration in general makes an

2    applicant unable to rehabilitate testimony that has already

3    been called into question.”).   Moreover, the agency did not err

4    in giving diminished weight to the letters from Panthi’s father

5    and fellow NPC members.   See Y.C. v. Holder, 741 F.3d 324, 334

6    (2d Cir. 2013) (deferring to diminished weight given to evidence

7    “submitted by an interested witness”); Xiao Ji Chen v. U.S.

8    Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (finding that

9    the weight afforded to evidence in immigration proceedings

10   “lies largely within the discretion of the IJ” (internal

11   quotation marks omitted)).

12       Given the inconsistencies relating to one of the main

13   allegations of past harm, the agency’s adverse credibility

14   determination is supported by substantial evidence.      See Xiu

15   Xia Lin, 534 F.3d at 165-66; Xian Tuan Ye v. Dep’t of Homeland

16   Sec., 446 F.3d 289, 295 (2d Cir. 2006).   That determination is

17   dispositive of Panthi’s claims for asylum, withholding of

18   removal, and CAT relief because all three claims are based on

19   the same factual predicate.   See Paul v. Gonzales, 444 F.3d 148,

20   156-57 (2d Cir. 2006).

21
                                     5
1        For the foregoing reasons, the petition for review is

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

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

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

5    is DISMISSED as moot.    Any pending request for oral argument

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

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

8    34.1(b).

 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe, Clerk




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