     15-1471
     Kumar v. Lynch
                                                                                        BIA
                                                                               Balasquide, IJ
                                                                               A087 916 784
                           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   9th day of January, two thousand seventeen.
 5
 6   PRESENT:
 7            RALPH K. WINTER,
 8            PETER W. HALL,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   GOLDEN KUMAR,
14            Petitioner,
15
16                    v.                                             15-1471
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Maleeha Haq, New York, NY.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Attorney General; Shelley R. Goad,
27                                       Assistant Director; Russell J.E.
28                                       Verby, Senior Litigation Counsel,
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 Golden Kumar, a native and citizen of India,

6    seeks review of an April 7, 2015, decision of the BIA affirming

7    a June 27, 2013, decision of an Immigration Judge (“IJ”) denying

8    Kumar’s application for asylum, withholding of removal, and

9    relief under the Convention Against Torture (“CAT”).               In re

10   Golden Kumar, No. A087 916 784 (B.I.A. Apr. 7, 2015), aff’g No.

11   A087 916 784 (Immig. Ct. N.Y. City June 27, 2013).              We assume

12   the    parties’    familiarity   with   the   underlying    facts    and

13   procedural history in this case.

14          We have reviewed both the IJ’s and the BIA’s opinions.

15   Yun-Zui Guan v. Gonzales, 432 F.3d 391, 395 (2d Cir. 2005).

16   The applicable standards of review are well established.             See

17   8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

18   513 (2d Cir. 2009).

19          Under the REAL ID Act of 2005, the agency may, in light of

20   “the    totality    of   the   circumstances,”    base     an    adverse

21   credibility determination on an applicant’s “demeanor, candor,

22   or responsiveness,” the plausibility of his account, and

                                       2
1    inconsistencies in his statements, “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 v. Mukasey,

4    534 F.3d 162, 165 (2d Cir. 2008).        Under the “substantial

5    evidence” standard of review, “we defer . . . to an IJ’s

6    credibility determination unless, from the totality of the

7    circumstances, it is plain that no reasonable fact-finder could

8    make such an adverse credibility ruling.”    Xiu Xia Lin, 534 F.3d

9    at 167.

10       The adverse credibility determination against Kumar is

11   sound.    Kumar claimed that in January 2009, he and his wife were

12   kidnapped by members of the radical Dera Sacha Sauda sect, and

13   that his wife, then five months pregnant, was beaten and raped,

14   causing her to miscarry.

15       In finding Kumar’s testimony not credible, the IJ relied

16   on Kumar’s failure to mention his wife’s rape during a credible

17   fear interview.    We have warned that a credible fear interview

18   warrants “close examination” because it may “be perceived as

19   coercive” or fail to “elicit all of the details supporting an

20   asylum claim.”    Ming Zhang v. Holder, 585 F.3d 715, 724-25 (2d

21   Cir. 2009).    Nevertheless, “[w]here the record of a credible

22   fear interview displays the hallmarks of reliability, it

                                      3
1    appropriately    can   be    considered   in   assessing   an   alien’s

2    credibility.”     Id. at 725.    Some of those hallmarks are that

3    the interview was memorialized in a typewritten document, was

4    conducted through an interpreter, and asked questions designed

5    to elicit a possible asylum claim.              Id. at 275 (citing

6    Ramsameachire v. Ashcroft, 357 F.3d 169, 180 (2d Cir. 2004)).

7    Those hallmarks were present here: the interviewer asked Kumar

8    about his past harm and future fears, and the interview was

9    conducted with an interpreter and memorialized in a typewritten

10   document.     As the IJ noted, Kumar told the immigration official

11   that his pregnant wife was detained and beaten, causing a

12   miscarriage, but unlike at the merits hearing, did not report

13   that she was raped.         While we have observed “that, in some

14   cases, insignificant details about an applicant’s claim might

15   not be mentioned during a credible fear interview,” Ming Zhang,

16   585 F.3d at 725 (emphasis added), the rape of Kumar’s wife was

17   not an “insignificant detail” of his claim.

18       Kumar argues that the agency failed to conduct the required

19   assessment of the interview’s reliability.        But we have advised

20   that the BIA “need not engage in ‘robotic incantations’ or make

21   any talismanic references to ‘close examination’ or ‘special

22   scrutiny.’”     Id.; cf. Yun-Zui Guan v. Gonzales, 432 F.3d 391,

                                        4
1    396 (2d Cir. 2005) (“[W]e do not regard these factors as

2    essential to be assessed in every case, but simply as helpful

3    matters to be considered where appropriate.”).

4          Kumar conducts his own assessment and attacks the credible

5    fear interview as unreliable on four fronts.     First, he argues

6    that it appears to paraphrase (rather than record) his answers.

7    But the record need not be a “verbatim account” of the

8    interview--it need only set forth the questions asked and the

9    answers given.    Ming Zhang, 585 F.3d at 725.   Second, he notes

10   that the interviewer never asked about harm to his wife.     That

11   is true; however, Kumar volunteered that his wife was beaten

12   to the point of a miscarriage.   It strains credulity to suggest

13   that the official was obligated to ask a follow-up question

14   about what harm--beyond a miscarriage--Kumar’s wife suffered.

15   Third, Kumar posits that he may have omitted details due to fear

16   of returning to India.    Kumar did not testify to that effect

17   at his hearing, and an “attorney’s unsworn statements in a brief

18   are not evidence,” Kulhawik v. Holder, 571 F.3d 296, 298 (2d

19   Cir. 2009).      In any event, even if Kumar had offered that

20   explanation, the agency would not have been compelled to credit

21   it.   See Ming Zhang, 585 F.3d at 725 (“We again reject the notion

22   that a petitioner’s claim that she was nervous and distracted

                                      5
1    during the credible fear interview automatically undermines or

2    negates its reliability as a source of her statements.”).

3    Fourth, Kumar argues that interpretation issues erode the

4    reliability of the credible fear interview.               The interview

5    record does note that the interviewer’s voice became hard to

6    hear    at   times,   but   Kumar   did     not   raise   any   problems

7    understanding during the interview.          When confronted with his

8    failure to mention the rape, Kumar first responded that the

9    immigration official did not ask detailed questions, but then

10   said he did mention the rape and posited that the interviewer

11   failed to record that statement.          The agency was not compelled

12   to credit these conflicting explanations.          Majidi v. Gonzales,

13   430 F.3d 77, 80 (2d Cir. 2005) (explaining that the agency is

14   not required to credit an explanation that is merely plausible

15   or possible).

16          The agency reasonably relied on two other inconsistencies

17   between Kumar’s testimony and documentary evidence.             The first

18   was with respect to his wife’s pregnancy during the attack: he

19   testified that she was five months pregnant, but her letter said

20   three months.     At the merits hearing, Kumar offered three

21   explanations for this discrepancy: he did not know the details

22   of her pregnancy, they were under too much stress to learn those

                                         6
1    details, and Indian wives are shy about pregnancy.             Contrary

2    to Kumar’s arguments here, the IJ acknowledged that Kumar

3    offered various explanations, and elected, quite reasonably,

4    to reject them.      Majidi, 430 F.3d at 80.

5        The second inconsistency concerned when Kumar and his wife

6    received   medical    treatment   after    the   kidnapping.      Kumar

7    testified that his wife was released after two or three days

8    and was taken to the hospital immediately, and that he was

9    released about two weeks later, on January 15.         But documents

10   from the couple’s physician reflected that both Kumar and his

11   wife were treated on January 15.          When confronted with this

12   inconsistency, Kumar explained that the doctor did not remember

13   when he treated them and that the doctor did not “want to be

14   involved in any kind of legal headaches.”        Contrary to Kumar’s

15   arguments, the IJ did consider these explanations, but was not

16   compelled to accept them, Majidi, 430 F.3d at 80.        Nor was the

17   agency obligated to deem the doctor’s letter “unreliable as

18   documentary evidence.”      “We generally defer to the agency's

19   determination of the weight afforded to an alien’s documentary

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

21   Here, the agency was within its discretion to find that Kumar’s



                                       7
1    documentary evidence impeached, rather than bolstered, his

2    testimony.

3          Given the inconsistencies that cast doubt on whether Kumar

4    and   his    wife   suffered   a    critical   incident   of   alleged

5    persecution, the totality of the circumstances supports the

6    agency’s     adverse    credibility      determination.        Kumar’s

7    applications for asylum, withholding of removal, and CAT relief

8    were based on the same factual predicate, and so the adverse

9    credibility determination was dispositive as to all three.        See

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

11         For the foregoing reasons, the petition for review is

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

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

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

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

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

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

18   34.1(b).

19                                      FOR THE COURT:
20                                      Catherine O=Hagan Wolfe, Clerk




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