     17-1005
     Bohara v. Whitaker
                                                                                    BIA
                                                                              Poczter, IJ
                                                                           A206 475 735




                               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 25th day of January, two thousand nineteen.
 5
 6   PRESENT:
 7            JON O. NEWMAN,
 8            DENNY CHIN,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   RAM KRISHNA BOHARA,
14            Petitioner,
15
16                        v.                                     17-1005
17                                                               NAC
18   MATTHEW G. WHITAKER,
19   ACTING UNITED STATES ATTORNEY
20   GENERAL,
21            Respondent.
22   _____________________________________
23
24   	
 1   FOR PETITIONER:              Khagendra Gharti-Chhetry, New
 2                                York, NY.
 3
 4   FOR RESPONDENT:              Chad A. Readler, Principal
 5                                Deputy Assistant Attorney
 6                                General; Cindy S. Ferrier,
 7                                Assistant Director; Surell
 8                                Brady, Trial Attorney, Office of
 9                                Immigration Litigation, United
10                                States Department of Justice,
11                                Washington, DC.
12
13       UPON DUE CONSIDERATION of this petition for review of a

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

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

16   is DENIED.

17       Petitioner Ram Krishna Bohara, a native and citizen of

18   Nepal, seeks review of a March 9, 2017, decision of the BIA

19   affirming an August 2, 2016, decision of an Immigration Judge

20   (“IJ”) denying Bohara’s application for asylum, withholding

21   of removal, and relief under the Convention Against Torture

22   (“CAT”).   In re Ram Krishna Bohara, No. A206 475 735 (B.I.A.

23   Mar. 9, 2017), aff’g No. A206 475 735 (Immig. Ct. N.Y. City

24   Aug. 2, 2016).    We assume the parties’ familiarity with the

25   underlying facts and procedural history in this case.

26       Under the circumstances of this case, we have reviewed

27   the IJ’s decision as the final agency decision. Shunfu Li v.

28   Mukasey, 529 F.3d 141, 146 (2d Cir. 2008).     The applicable


                                    2
1    standards of review are well established.      See 8 U.S.C.

2    § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-

3    66 (2d Cir. 2008).

4        The governing REAL ID Act credibility standard provides

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

6    circumstances,” and may base a credibility finding on

7    inconsistencies or omissions in his or his witness’s

8    statements, “without regard to whether” they go “to the

9    heart of the applicant’s claim.” 8 U.S.C.

10   § 1158(b)(1)(B)(iii); accord Xiu Xia Lin, 534 F.3d at 163-

11   64, 166-67. “[E]ven where an IJ relies on discrepancies or

12   lacunae that, if taken separately, concern matters

13   collateral or ancillary to the claim, the cumulative effect

14   may nevertheless be deemed consequential by the fact-

15   finder.” Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir.

16   2006) (internal quotation marks and citation omitted).    “We

17   defer . . . to an IJ’s credibility determination

18   unless . . . it is plain that no reasonable fact-finder

19   could make such an adverse credibility ruling.” Xiu Xia

20   Lin, 534 F.3d at 167. See also Hong Fei Gao v. Sessions,

21   891 F.3d 67, 77 (2d Cir. 2018). For the reasons that




                                  3
1    follow, we conclude that substantial evidence supports the

2    agency’s credibility ruling.

3        First, the agency reasonably relied on inconsistency

4    between Bohara’s testimony and evidence concerning his one

5    alleged physical altercation with Maoists. Id. at 163-64.

6    Bohara’s application and testimony reflected that he was

7    slapped by one individual; however, a letter from the

8    Nepali Congress Party (“NCP”) stated that Maoists attacked

9    and injured him, and a letter from a NCP candidate stated

10   that Bohara was badly injured by Maoists. The agency was

11   not required to credit Bohara’s explanation—that he did not

12   know why the letters stated that was injured—because it did

13   not explain the inconsistencies. Majidi v. Gonzales, 430

14   F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more than

15   offer a plausible explanation for his inconsistent

16   statements to secure relief; he must demonstrate that a

17   reasonable fact-finder would be compelled to credit his

18   testimony.” (internal quotation marks omitted)). The agency

19   also properly found these discrepancies significant because

20   they related to Bohara’s only allegation of past physical

21   harm. Xiu Xia Lin, 534 F.3d at 163-64.




                                    4
1        Second, the agency reasonably relied on inconsistency

2    between Bohara’s testimony and evidence concerning when he

3    joined the NCP. Tu Lin, 446 F.3d at 402. Bohara testified

4    that he joined the NCP on August 19, 2006, but his party’s

5    letter stated that he joined on April 10, 2008. The agency

6    was not compelled to credit Bohara’s explanation that he

7    forgot when he joined the NCP. Majidi, 430 F.3d at 80.

8    Although a discrepancy in dates need not be fatal if “minor

9    and isolated,” Diallo v. INS, 232 F.3d 279, 288 (2d Cir.

10   2000), Bohara’s date discrepancy spanned nearly two years.

11   Moreover, Bohara’s credibility on this point was further

12   undermined by the fact that his party certificate had a

13   blank space for his membership date. See Xiu Xia Lin, 534

14   F.3d at 166-67 & n.3 (“An inconsistency and an omission

15   are . . . functionally equivalent” for credibility

16   purposes.).

17       Third, the agency reasonably relied on the inconsistency

18   between   Bohara’s   testimony   and   evidence   concerning   the

19   results of the 2013 constituent assembly elections.       Id. at

20   163-64.   Bohara’s testimony that Maoists won the elections

21   was contradicted by the country conditions evidence.       After

22   initially testifying that the country conditions evidence was


                                      5
1    wrong, Bohara explained that he forgot who won.     The agency

2    reasonably   rejected     this   explanation   because   Bohara

3    specifically testified that he worked on these elections.

4    Majidi, 430 F.3d at 80.

5        Fourth, the agency reasonably relied on inconsistency

6    between Bohara’s testimony and evidence concerning the date

7    of his father’s attack. Tu Lin, 446 F.3d at 402. Bohara

8    testified that Maoists attacked his father on November 25,

9    2015, but a letter from the police stated that the attack

10   occurred on December 7, 2015. The agency did not err in

11   rejecting Bohara’s explanation—that the date in the letter

12   was a mistake—because it was not compelling given the other

13   date discrepancies in the record. Majidi, 430 F.3d at 80.

14   While this inconsistency is minor, it nevertheless provides

15   additional support for the agency’s adverse credibility

16   ruling. Tu Lin, 446 F.3d at 402.

17       Given the foregoing inconsistencies, which call into

18   question Bohara’s sole allegation of past physical harm and

19   whether he supported the NCP, the “totality of the

20   circumstances” supports the agency’s adverse credibility

21   determination. Xiu Xia Lin, 534 F.3d at 167. The

22   credibility determination is dispositive of asylum,


                                      6
1   withholding of removal, and CAT relief because all three

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

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

4       For the foregoing reasons, the petition for review is

5   DENIED.

6                          FOR THE COURT:
7                          Catherine O’Hagan Wolfe
8                          Clerk of Court




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