     16-384
     Patel v. Sessions
                                                                                       BIA
                                                                                   Leeds, IJ
                                                                               A200 955 082
                              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   20th day of October, two thousand seventeen.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            DEBRA ANN LIVINGSTON,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   RAKESH VITTHALDAS PATEL,
14            Petitioner,
15
16                       v.                                          16-384
17                                                                   NAC
18   JEFFERSON B. SESSIONS, III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Gopal T. Kukreja, Syosset, NY.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; Eric W.
27                                       Marsteller,     Senior    Litigation
28                                       Counsel; Edward C. Durant, 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 Rakesh Vitthaldas Patel, a native and citizen

 6   of India, seeks review of a January 13, 2016, decision of the

 7   BIA affirming a September 4, 2014, decision of an Immigration

 8   Judge     (“IJ”)   denying    Patel’s   application      for     asylum,

 9   withholding of removal, and relief under the Convention Against

10   Torture (“CAT”).     In re Rakesh Vitthaldas Patel, No. A200 955

11   082 (B.I.A. Jan. 13, 2016), aff’g No. A200 955 082 (Immig. Ct.

12   N.Y. City Sept. 4, 2014).       We assume the parties’ familiarity

13   with the underlying facts and procedural history in this case.

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

15   the IJ’s and the BIA’s opinions “for the sake of completeness.”

16   Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.

17   2006).      The    applicable    standards   of    review      are   well

18   established.       8 U.S.C.     § 1252(b)(4)(B);   Xiu   Xia     Lin   v.

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

20       For asylum applications like Patel’s, governed by the REAL

21   ID Act, the agency may, “[c]onsidering the totality of the

22   circumstances,” base a credibility finding on inconsistencies


                                        2
 1   in an asylum applicant’s statements and other record evidence

 2   “without regard to whether” those inconsistencies go “to the

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

 4   § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 163-64.

 5   “We defer . . . to an IJ’s credibility determination unless .

 6   . . it is plain that no reasonable fact-finder could make such

 7   an adverse credibility ruling.”          Xiu Xia Lin, 534 F.3d at 167;

 8   see also Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005)

 9   (“[O]ur review is designed to ensure merely that credibility

10   findings are based upon neither a misstatement of the facts in

11   the record nor bald speculation or caprice” (internal citation

12   and quotation marks omitted)).          Further, “[a] petitioner must

13   do more than offer a plausible explanation for his inconsistent

14   statements to secure relief; he must demonstrate that a

15   reasonable    fact-finder   would       be   compelled     to   credit   his

16   testimony.”       Majidi,    430        F.3d     at   80   (emphasis      in

17   original)(internal quotation marks omitted). For the reasons

18   that follow, we conclude that substantial evidence supports the

19   agency’s determination that Patel was not credible.

20       The agency’s credibility determination is supported by

21   three affidavits submitted by Patel and signed by three

22   different affiants. They contain nearly identical language in


                                         3
 1   several   paragraphs      to   describe,   inter     alia,   Patel’s

 2   participation in the Bharatiya Janata Party (“BJP”) and the

 3   National Congress Party’s (“NCP”) mistreatment of him.        These

 4   substantial similarities cast doubt on the credibility of the

 5   affidavits and thus on Patel’s own credibility.        Singh v. BIA,

 6   438 F.3d 145, 148 (2d Cir. 2006) (upholding adverse credibility

 7   determination based in part on “nearly identical language” in

 8   affidavits); Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007)

 9   (“[A] single false document or a single instance of false

10   testimony may (if attributable to petitioner) infect the

11   balance   of   the   alien’s   uncorroborated   or   unauthenticated

12   evidence.”).    Patel argues that the similarities should not be

13   held against him because the affidavits were likely prepared

14   by the same interpreter at the same time and only immaterial

15   topics were described with similar language.         These arguments

16   are not compelling.     Nothing suggests that the affidavits were

17   prepared by an interpreter and even if they were, it does not

18   explain how the affiants would have used the same words and

19   described events in the same order.        See Majidi, 430 F.3d at

20   80-81.    And the materiality of the specific paragraphs is

21   irrelevant because the fact of the identical language calls into

22   question whether they are based on personal knowledge, and is


                                       4
1    therefore sufficient to undermine Patel’s credibility.      See

2    Siewe, 480 F.3d at 170.

 3       The adverse credibility ruling is further supported by the

 4   discrepancy between Patel’s testimony that he could not return

 5   to India because the NCP won the most recent election in his

 6   locality and the Government’s evidence that the BJP won that

 7   election.   Patel explained to the IJ that he misunderstood

 8   which locality the BJP had won.     He now offers a different

 9   explanation,   contending    that   he   received   inaccurate

10   information about the election results from his friends in the

11   United States; however, this explanation was never presented

12   to the IJ and, therefore, could not have compelled the IJ to

13   credit Patel’s testimony.   See Majidi, 430 F.3d at 80.   Nor is

14   it compelling because the Government’s evidence was publicly

15   available and, contrary to Patel’s explanation, his submission

16   of affidavits that post-date the election show that he was, in

17   fact, in contact with people in India.

18       Finally, the adverse credibility ruling is also supported

19   by the discrepancy between Patel’s written application and his

20   testimony that he never contacted the police about incidents

21   at an annual Hindu festival.   Patel argues that, contrary to

22   the IJ’s finding, he testified that he contacted the police;


                                    5
1    however, he relies on testimony about different incidents to

2    support his challenge.    See id.

3        Given the inconsistencies and the similarity of the

4    affidavits, the totality of the circumstances supports the

5    adverse credibility determination: a reasonable adjudicator

6    would not be compelled to conclude otherwise.             See 8 U.S.C.

 7   § 1158(b)(1)(B);   Xiu   Xia   Lin,    534   F.3d   at   165-67.   The

 8   credibility finding is dispositive of asylum, withholding of

 9   removal, and CAT relief because Patel’s claims are all based

10   on the same factual predicate.        See Paul v. Gonzales, 444 F.3d

11   148, 156-57 (2d Cir. 2006).

12       For the foregoing reasons, the petition for review is

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

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

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

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

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

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

19   34.1(b).

20                                  FOR THE COURT:
21                                  Catherine O’Hagan Wolfe, Clerk




                                      6
