     15-3000
     Kumar v. Lynch
                                                                                         BIA
                                                                               Christensen, IJ
                                                                               A201 106 372

                           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 January, two thousand seventeen.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            JOSÉ A. CABRANES,
 9            RAYMOND J.LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   RAKESH KUMAR,
14            Petitioner,
15
16                    v.                                             15-3000
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Amy Nussbaum Gell, New York, N.Y.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; Anthony
27                                       C. Payne, Assistant Director;
28                                       Alexander J. Lutz, Trial Attorney;
29                                       Lilah R. Thompson, Law Clerk, Office
30                                       of Immigration Litigation, United
31                                       States Department of Justice,
32                                       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 Kumar, a native and citizen of India,

6    seeks review of a September 16, 2015, decision of the BIA,

7    affirming a September 18, 2014, decision of an Immigration Judge

8    (“IJ”) denying asylum, withholding of removal, and relief under

9    the Convention Against Torture (“CAT”).        In re Rakesh Kumar,

10   No. A201 106 372 (B.I.A. Sept. 16, 2015), aff’g No. A201 106

11   372 (Immig. Ct. N.Y. City Sept. 18, 2014).             We assume the

12   parties’ familiarity with the underlying facts and procedural

13   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).     “Considering the

20   totality of the circumstances, and all relevant factors, a trier

21   of fact may base a credibility determination on . . . the

22   consistency between the applicant’s or witness’s written and

23   oral statements (whenever made and whether or not under oath,

                                      2
1    and considering the circumstances under which the statements

2    were made), . . . without regard to whether an inconsistency,

3    inaccuracy, or falsehood goes to the heart of the applicant’s

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

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

6    determination that Kumar was not credible as to his claim that

7    he was persecuted in India on account of his membership in the

8    Shiromani Akali Dal Party.

9           The    agency   reasonably       relied   on   several     record

10   inconsistencies and omissions.          See Xiu Xia Lin, 534 F.3d at

11   167.    Kumar omitted from his asylum application his claim that

12   police beat him at a political rally in India, see id. at 166

13   n.3 (“[a]n inconsistency and an omission are . . . functionally

14   equivalent.”), and Kumar could not compellingly explain this

15   omission despite multiple opportunities to do so, see Majidi

16   v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005).*            Furthermore,

17   Kumar’s testimony and supporting affidavits were inconsistent

18   regarding (1) whether he accompanied his father, village head,

19   and party leaders to report the first Congress Party attack he

     * Although we do not consider Kumar’s explanation offered for
     the first time here, see Lin Zhong v. U.S. Dep’t of Justice,
     480 F.3d 104, 119-20 (2d Cir. 2007), we are doubtful that this
     omission was immaterial as Kumar now contends and note that the
     agency “may rely on any inconsistency or omission” regardless
     of materiality so long as the adverse credibility determination
     is supported by the totality of the circumstances, see Xiu Xia
     Lin, 534 F.3d at 167.
                                         3
1    purportedly suffered, (2) whether police threatened to detain

2    them    should    they    return   to       report     future   attacks,       and

3    (3) whether      police   had   threatened        his    parents       since   his

4    departure from India.       See Xiu Xia Lin, 534 F.3d at 167.              Kumar

5    could not explain any of these inconsistencies.                    See Majidi,

6    430 F.3d at 80.

7           Having questioned Kumar’s credibility, the IJ reasonably

8    relied further on Kumar’s failure to rehabilitate his claim with

9    reliable corroborating evidence.               “An applicant’s failure to

10   corroborate his or her testimony may bear on credibility,

11   because the absence of corroboration in general makes an

12   applicant unable to rehabilitate testimony that has already

13   been called into question.”           Biao Yang v. Gonzales, 496 F.3d

14   268, 273 (2d Cir. 2007).        As the IJ determined, many of Kumar’s

15   supporting affidavits were not credible because they were

16   inconsistent with Kumar’s testimony and with each other, see

17   8 U.S.C. § 1158(b)(1)(B)(iii), and alternatively were entitled

18   to little weight because the authors were not available for

19   cross-examination and some were interested parties, see Y.C.

20   v. Holder, 741 F.3d 324, 334 (2d Cir. 2013).

21          Given     the   inconsistencies          and     lack      of    credible

22   corroborating      evidence,    the         agency’s    adverse    credibility

23   determination is supported by substantial evidence.                     8 U.S.C.

                                             4
1    § 1158(b)(1)(B)(iii).     Contrary to Kumar’s position, that

2    determination is dispositive of asylum, withholding of removal,

3    and CAT relief because all three claims are based on the same

4    factual predicate.   See Paul v. Gonzales, 444 F.3d 148, 156-57

5    (2d Cir. 2006).

6        For the foregoing reasons, the petition for review is

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

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

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

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

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

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

13   34.1(b).

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




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