     13-4777
     Sharma v. Lynch
                                                                                         BIA
                                                                               Christensen, IJ
                                                                               A089 091 988
                            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 July, two thousand fifteen.
 5
 6   PRESENT:
 7            ROBERT A. KATZMANN,
 8                 Chief Judge,
 9            DEBRA ANN LIVINGSTON,
10            SUSAN L. CARNEY,
11                 Circuit Judges.
12   _____________________________________
13
14   BEDHANIDHI SHARMA, AKA
15   BEDRUIDI SHAZMA,
16            Petitioner,
17
18                     v.                                            13-4777
19                                                                   NAC
20
21   LORETTA E. LYNCH, UNITED STATES
22   ATTORNEY GENERAL,
23            Respondent.
24   _____________________________________
25
26
27   FOR PETITIONER:                     Yagya P. Nepal, San Leandro,
28                                       CA.
29
1    FOR RESPONDENT:                Joyce R. Branda, Acting Assistant
2                                   Attorney General; Song Park, Senior
3                                   Litigation Counsel; Kimberly A.
4                                   Burdge, Trial Attorney, Office of
5                                   Immigration Litigation, United
6                                   States Department of Justice,
7                                   Washington, D.C.
8
9        UPON DUE CONSIDERATION of this petition for review of a

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

11   ORDERED, ADJUDGED, AND DECREED that the petition for review is

12   DENIED.

13       Petitioner Bedhanidhi Sharma, a native and citizen of

14   Nepal, seeks review of a November 27, 2013, decision of the BIA

15   (1) affirming an April 5, 2011, decision of an Immigration Judge

16   (“IJ”) denying Sharma’s application for asylum, withholding of

17   removal, and relief under the Convention Against Torture

18   (“CAT”);   and   (2) denying    his   motion   to   remand.   In   re

19   Bedhanidhi Sharma, No. A089 091 988 (B.I.A. Nov. 27, 2013),

20   aff’g No. A089 091 988 (Immig. Ct. N.Y. City Apr. 5, 2011).        We

21   assume the parties’ familiarity with the underlying facts and

22   procedural history in this case.

23       Under the circumstances of this case, we review the IJ’s

24   decision as supplemented by the BIA.      See Yan Chen v. Gonzales,

25   417 F.3d 268, 271 (2d Cir. 2005).      The applicable standards of
                                       2
1    review are well established.            See 8 U.S.C. § 1252(b)(4)(B); see

2    also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

3    Adverse Credibility Determination

4          For asylum applications such as Sharma’s, governed by the

5    REAL ID Act of 2005, the agency may, considering the totality

6    of the circumstances, base a credibility finding on an asylum

7    applicant’s     “demeanor,           candor,     or   responsiveness,”       the

8    plausibility      of    his       account,    and   inconsistencies     in   his

9    statements, so long as they reasonably support an inference that

10   the applicant is not credible.               8 U.S.C. § 1158(b)(1)(B)(iii);

11   see Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).

12   For    purposes        of     a     credibility       determination,     “[a]n

13   inconsistency        and     an    omission     are   .   .   .   functionally

14   equivalent.”      Xiu Xia Lin, 534 F.3d at 166 n.3.               We defer “to

15   an IJ’s credibility determination unless, from the totality of

16   the circumstances, it is plain that no reasonable fact-finder

17   could make such an adverse credibility ruling.”                    Id. at 167.

18   In    this   case,     the    agency     reasonably       based   its   adverse

19   credibility determination on omissions and inconsistencies.

20         Sharma’s testimony conflicted with his asylum application

21   on a key point: whether he fled to India before or after the
                                              3
1    Maoists released his kidnaped wife.      In his asylum application

2    he stated that he left India after the Maoists released his wife.

3    By contrast, he testified that while he was at a store, he

4    learned that the Maoists were at his home and immediately left

5    Nepal, learning that the Maoists kidnaped his wife only after

6    he arrived in India.       Letters from Sharma’s wife and father

7    state that Sharma went to India after his wife was released.

8        Sharma’s testimony and asylum application conflicted with

9    the record of his credible fear interview with respect to his

10   party affiliation.    At his merits hearing and in his asylum

11   application, Sharma averred that: beginning in 1986, he was

12   active with the Nepali Student Union, the student affiliate of

13   the Nepali Congress Party (“NCP”); he remained a member of the

14   NCP for more than 20 years; and it was his affiliation with the

15   NCP that triggered Maoist attacks.       He did not mention the NCP

16   at all in his credible fear interview.        Similarly, in both his

17   testimony   and   asylum   application   he    said   he   joined   the

18   Rasertriya Prajantranea Party (“RPP”); at the credible fear

19   interview he said he was simply a supporter.

20       Contrary to Sharma’s argument, the IJ reasonably relied on

21   the credible fear interview to form the basis of the adverse
                                       4
1    credibility determination.    When discrepancies arise from an

2    applicant’s statements in a credible fear interview, we closely

3    examine the record of the interview to ensure that it is

4    sufficiently accurate to merit consideration in determining

5    whether the applicant is credible.    Ming Zhang v. Holder, 585

6    F.3d 715, 723-25 (2d Cir. 2009).    Sharma argues only that “the

7    asylum officer did not ask [him] questions which would elicit

8    the details of his membership in the [NCP]” and did not ask

9    follow-up questions to develop his account.     However, the IJ

10   based the adverse credibility determination not on a difference

11   in details between the credible fear interview and Sharma’s

12   asylum statement, but rather on Sharma’s complete omission from

13   the credible fear interview of any mention of the NCP.   Further,

14   a review of the credible fear interview record shows that Sharma

15   was asked several questions that should have elicited a response

16   regarding his membership in the NCP if it was, as he later

17   claimed, the major reason the Maoists targeted him.

18       Sharma also argues that the agency erred by ignoring his

19   corroborating evidence: specifically, an information report

20   his wife filed with the Nepalese police in April 2008 regarding

21   an attack by the Maoists.    However, the IJ did not ignore this
                                     5
1    evidence: he devoted a paragraph of his oral decision to

2    discussing it, noting that during the hearing, Sharma was

3    confused as to its contents and seemed unfamiliar with it.                The

4    IJ stated that he would not use the confusing testimony as a

5    basis for the adverse credibility finding, but would not afford

6    the document any weight, particularly because it was not

7    authenticated.      The weight afforded to an applicant’s evidence

8    in immigration proceedings lies largely within the discretion

9    of the agency.      Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

10   315,    342   (2d   Cir.    2006).         Further,   even    affording   the

11   information report probative weight, it does not rehabilitate

12   Sharma’s inconsistent testimony regarding his involvement with

13   the NCP and RPP and the timing of his wife’s kidnaping and his

14   flight to India.      See Biao Yang v. Gonzales, 496 F.3d 268, 273

15   (2d Cir. 2007).     Similarly, Sharma argues that the agency erred

16   because it did not consider the country conditions evidence he

17   submitted; however, that evidence would not affect the IJ’s

18   finding regarding Sharma’s credibility.

19          A totality of the circumstances supports the agency’s

20   adverse       credibility        determination,       based    on   Sharma’s

21   inconsistencies            and       omissions.                8      U.S.C.
                                            6
1    § 1158(b)(1)(B)(iii); see Xiu Xia Lin, 534 F.3d at 167.

2    Further, because the only evidence of a threat to Sharma’s life

3    or freedom depended upon his credibility, the agency’s finding

4    that he was not credible necessarily precludes success on his

5    claims for asylum, withholding of removal, and CAT relief.

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

7    Motion to Remand

8        The BIA’s denial of a motion to remand that relies on new

9    evidence is held to the substantive standard for motions to

10   reopen, and is reviewed for abuse of discretion.    Li Yong Cao

11   v. U.S. Dep’t of Justice, 421 F.3d 149, 156 (2d Cir. 2005).   “A

12   motion to reopen proceedings shall not be granted unless it

13   appears to the Board that evidence sought to be offered is

14   material and was not available and could not have been

15   discovered or presented at the former hearing.”        8 C.F.R.

16   § 1003.2(c)(1); see also Norani v. Gonzales, 451 F.3d 292, 294

17   & n.3 (2d Cir. 2006).

18       Contrary to Sharma’s assertion, the BIA did not abuse its

19   discretion in denying his motion to remand.   The BIA determined

20   that an independent translator’s account of translation errors

21   during the merits hearing was not material because the errors
                                    7
1    identified did not affect the IJ’s credibility determination.

2    Indeed, four of the five main translation discrepancies have

3    no bearing on the credibility determination.                  The fifth

4    discrepancy involves Sharma’s response when confronted with the

5    police   information   report.       The   translation   of    Sharma’s

6    response as rendered by the independent translator does negate

7    the confusion the IJ identified.       However, the IJ did not use

8    Sharma’s purported confusion as a basis for the adverse

9    credibility finding.    While the IJ afforded the information

10   report limited weight because Sharma seemed unfamiliar with it,

11   and the independent translator’s account shows that Sharma was

12   aware of the report’s contents, as discussed above, even given

13   probative weight, the evidence would not rehabilitate Sharma’s

14   inconsistent testimony or explain his omissions.

15       Because even without the translation errors identified by

16   the independent translator, the IJ would have found Sharma

17   incredible, evidence of those errors was not material to

18   Sharma’s claim, and the BIA did not abuse its discretion when

19   it denied his motion to remand.        8 C.F.R. § 1003.2(c)(1); Li

20   Yong Cao, 421 F.3d at 156.


                                      8
1        For the foregoing reasons, the petition for review is

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

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

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

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

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

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

8    34.1(b).

 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe, Clerk




                                     9
