     17-2583
     Chodak v. Barr
                                                                           BIA
                                                                      Nelson, IJ
                                                               A087 786 623/624
                           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 20th day of May, two thousand twenty.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            DENNIS JACOBS,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   UGEN CHODAK, AKA PASANG SHERPA,
14   CHIRING SHERPA,
15            Petitioners,
16
17                    v.                                  17-2583
18                                                        NAC
19   WILLIAM P. BARR, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONERS:                 Stuart Altman, Law Office of
25                                    Stuart Altman, New York, NY.
26
27   FOR RESPONDENT:                  Joseph H. Hunt, Assistant Attorney
28                                    General; Terri J. Scadron,
29                                    Assistant Director; Margot L.
 1                                        Carter, Trial Attorney, Office of
 2                                        Immigration Litigation, United
 3                                        States Department of Justice,
 4                                        Washington, DC.

 5          UPON DUE CONSIDERATION of this petition for review of a

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

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

 8   is DENIED.

9           Petitioners Ugen Chodak and Chiring Sherpa, natives and

10   citizens of Nepal, seek review of a July 24, 2017, decision

11   of the BIA affirming an October 3, 2016, decision of an

12   Immigration Judge (“IJ”) denying Chodak’s application for

13   asylum,        withholding     of    removal,     and    relief      under    the

14   Convention Against Torture (“CAT”).                In re Ugen Chodak and

15   Chiring Sherpa, No. A 087 786 623/624 (B.I.A. July 24, 2017),

16   aff’g No. A 087 786 623/624             (Immig. Ct. N.Y. City Oct. 3,

17   2016).          We   assume    the     parties’    familiarity        with    the

18   underlying facts and procedural history in this case.

19          Under the circumstances of this case, we have reviewed

20   both     the     IJ’s    and   BIA’s    decisions       “for   the     sake   of

21   completeness.”          Wangchuck v. Dep’t of Homeland Sec., 448 F.3d

22   524, 528 (2d Cir. 2006).              The standards of review are well

23   established.         See 8 U.S.C. § 1252(b)(4); Hong Fei Gao v.

                                             2
 1   Sessions, 891 F.3d 67, 76 (2d Cir. 2018); Yanqin Weng v.

 2   Holder, 562 F.3d 510, 513-14 (2d Cir. 2009).

 3       Chodak had the burden of proof for asylum.                8 U.S.C.

 4   § 1158(b)(1)(B)(i).

 5       The testimony of the applicant may be sufficient to
 6       sustain    the     applicant’s    burden     without
 7       corroboration, but only if the applicant satisfies
 8       the trier of fact that the applicant’s testimony is
 9       credible, is persuasive, and refers to specific
10       facts sufficient to demonstrate that the applicant
11       is a refugee. In determining whether the applicant
12       has met the applicant’s burden, the trier of fact
13       may weigh the credible testimony along with other
14       evidence of record. Where the trier of fact
15       determines that the applicant should provide
16       evidence that corroborates otherwise credible
17       testimony, such evidence must be provided unless the
18       applicant does not have the evidence and cannot
19       reasonably obtain the evidence.
20
21   8 U.S.C. § 1158(b)(1)(B)(ii).          “An applicant’s failure to

22   corroborate his or her testimony may bear on credibility,

23   because the absence of corroboration in general makes an

24   applicant unable to rehabilitate testimony that has already

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

26   268, 273 (2d Cir. 2007).      “We generally defer to the agency’s

27   evaluation    of   the   weight   to   be   afforded   an   applicant’s

28   documentary evidence.”      Y.C. v. Holder, 741 F.3d 324, 332 (2d

29   Cir. 2013).


                                        3
 1          Contrary    to   Chodak’s      argument,    we   do   not     assume

 2   credibility       because    the      IJ   determined   that       Chodak’s

 3   submission of blank letterhead from the Maoists “totally

 4   undermine[d] his credibility.”             On appeal, the BIA did not

 5   disagree with this determination or state that it was assuming

 6   credibility.       The agency did not err in determining that

 7   Chodak did not meet his burden of proof.                 First, the IJ

 8   reasonably     determined     that    Chodak’s    submission   of    blank

 9   Maoist letterhead to the asylum officer and his evasive

10   testimony when asked about it undermined his credibility.

11   See 8 U.S.C. § 1158(b)(1)(B)(ii); Siewe v. Gonzales, 480 F.3d

12   160, 170 (2d Cir. 2007) (“[A] single false document or a single

13   instance of false testimony may (if attributable to the

14   petitioner) infect the balance of the alien’s uncorroborated

15   or unauthenticated evidence.”).

16          Second, the agency did not otherwise err in assigning

17   minimal weight to Chodak’s evidence.              See Y.C., 741 F.3d at

18   332.     As noted above, the IJ did not err in declining to

19   credit the threatening letter because it appeared to be

20   fabricated.       The agency also did not err in assigning little

21   weight    to   Chodak’s     medical    documentation    because     it   was


                                            4
 1   inconsistent with his testimony that he was unconscious when

 2   he arrived at the hospital.        Chodak testified that his friend

 3   took him to the hospital and that he was unconscious at the

 4   time, but the patient discharge had the box checked for “self”

 5   instead of “emergency” for how he arrived at the hospital.

 6   See Siewe, 480 F.3d at 167–68 (explaining that we defer to

 7   the IJ when competing inferences can be drawn from the

 8   evidence).       Given Chodak’s inability to provide details of

 9   his hospitalization or explain why the extended stay was

10   needed,    the    IJ   also   reasonably   determined   that   it   was

11   implausible that Chodak would be hospitalized so that he could

12   rest.     Id. at 168–69 (“[W]e will reject a deduction made by

13   an IJ only when there is a complete absence of probative facts

14   to support it—that is, when the speculation is ‘bald.’              The

15   speculation that inheres in inference is not ‘bald’ if the

16   inference is made available to the factfinder by record facts,

17   or even a single fact, viewed in the light of common sense

18   and ordinary experience.” (internal citation omitted)).             The

19   agency also reasonably gave minimal weight to a statement in

20   a letter from the Office of Tibet in New York City that Chodak

21   was a “chief reporter” for a Tibetan newspaper in Nepal


                                         5
 1   because     the     letter    consisted    of   two   sentences    and    no

 2   information about how the office had obtained the information

 3   about Chodak’s employment.          See Y.C., 741 F.3d at 332.

 4          In   sum,    substantial    evidence     supports    the    agency’s

 5   determination that Chodak failed to meet his burden of proof

 6   for asylum because there was a serious ground on which to

 7   question his credibility and the IJ did not err in giving

 8   little weight to his corroborating evidence.                See 8 U.S.C.

 9   § 1252(b)(4)(B); Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d

10   Cir.    2003)      (“Where,   as   here,   an   appeal     turns   on    the

11   sufficiency        of   the    factual     findings      underlying      the

12   immigration court’s determination that an alien has failed to

13   satisfy his burden of proof, we will reverse the immigration

14   court’s ruling only if no reasonable fact-finder could have

15   failed to find . . . past persecution or fear of future

16   persecution.” (internal quotation marks omitted)).                 Because

17   the agency did not err in determining that Chodak failed to

18   meet his burden for asylum, it did not err in finding that he

19   failed to meet the higher standards for withholding of removal

20   and CAT relief.         See Lecaj v. Holder, 616 F.3d 111, 119–20

21   (2d Cir. 2010).


                                          6
1       For the foregoing reasons, the petition for review is

2   DENIED.   All pending motions and applications are DENIED and

3   stays VACATED.

4                               FOR THE COURT:
5                               Catherine O’Hagan Wolfe,
6                               Clerk of Court




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