     17-863
     Bhai v. Whitaker
                                                                                       BIA
                                                                                    Hom, IJ
                                                               A205 432 151/152/153/154/155

                             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 4th day of January, two thousand nineteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            ROBERT D. SACK,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   SOMESH K. BHAI, SONU KUMARI,
14   ARYANN NLN, SHANN NLN, TANUSHREE
15   NLN,
16            Petitioners,
17
18                      v.                                       17-863
19                                                               NAC
20   JEFFERSON B. SESSIONS III,
21   UNITED STATES ATTORNEY GENERAL,
22            Respondent.
23   _____________________________________
24
25   FOR PETITIONERS:                   Anas J. Ahmed, Pannun The Firm,
26                                      P.C., Jackson Heights, NY.
27
28   FOR RESPONDENT:                    Chad A. Readler, Acting Assistant
29                                      Attorney General; Douglas E.
30                                      Ginsburg, Assistant Director;
31                                      Timothy Bo Stanton, Trial
32                                      Attorney, Office of Immigration
1                                       Litigation, United States
2                                       Department of Justice, Washington,
3                                       DC.
4
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 Somesh K. Bhai, Sonu Kumari, Aryann NLN,

10   Shann NLN, and Tanushree NLN, natives and citizens of India,

11   seek review of a March 20, 2017, decision of the BIA affirming

12   a September 17, 2015, decision of an Immigration Judge (“IJ”)

13   denying     Bhai’s     application      for     asylum,       withholding     of

14   removal, and relief under the Convention Against Torture

15   (“CAT”).     In re Somesh K. Bhai, Sonu Kumari, Aryann NLN,

16   Shann      NLN,      and    Tanushree         NLN,     Nos.      A   205     432

17   151/152/153/154/155 (B.I.A. Mar. 20, 2017), aff’g No. A 205

18   432 151/152/153/154/155            (Immig. Ct. N.Y. City Sept. 17,

19   2015).       We   assume     the    parties’         familiarity     with    the

20   underlying facts and procedural history in this case.

21       The only issue before us is the agency’s denial of

22   withholding of removal and CAT relief as to Bhai himself.

23   Although     he   applied    for     asylum      and    listed       the    other

24   petitioners as derivative beneficiaries for that relief, the

                                           2
1    agency denied the asylum application as time barred.                Bhai

2    has abandoned any challenge to that ruling and thus to that

3    form of relief by failing to challenge the time bar ruling in

4    his brief.     See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541

5    n.1, 545 n.7 (2d Cir. 2005) (noting that petitioner abandons

6    issues and claims not raised in his brief).        He similarly has

7    abandoned any challenge to the BIA’s denial of his motion to

8    remand.   Id.   Accordingly, we address only whether the agency

9    erred in denying withholding of removal and CAT protection on

10   credibility grounds.

11       Because the BIA affirmed the IJ’s adverse credibility

12   ruling, we consider both the IJ’s and the BIA’s decisions on

13   credibility “for the sake of completeness.”               Wangchuck v.

14   Dep’t of Homeland Security, 448 F.3d 524, 528 (2d Cir. 2006).

15   The applicable standards of review are well established.            See

16   8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d

17   162, 165-66 (2d Cir. 2008) (reviewing adverse credibility

18   determination     under   a   substantial      evidence     standard).

19   “Considering    the   totality   of   the   circumstances,    and    all

20   relevant factors, a trier of fact may base a credibility

21   determination on the demeanor, candor, or responsiveness of

22   the applicant or witness, the inherent plausibility of the

                                       3
1    applicant’s or witness’s account, the consistency between the

2    applicant’s or witness’s written and oral statements . . . ,

3    the       internal          consistency      of     each     such    statement,     the

4    consistency of such statements with other evidence of record

5    .     .    .     ,     or    any     other     relevant      factor.”         8 U.S.C.

6    § 1158(b)(1)(B)(iii).                  “We defer . . . to an IJ’s credibility

7    determination unless . . . it is plain that no reasonable

8    fact-finder could make such an adverse credibility ruling.”

9    Xiu Xia Lin, 534 F.3d at 167.                      Substantial evidence supports

10   the agency’s conclusion that Bhai was not credible.

11             First, the agency reasonably relied on Bhai’s admission

12   that       he    filed      a   fake    visa   petition       in    finding   him   not

13   credible.             See 8 U.S.C. § 1158(b)(1)(B)(iii) (requiring an

14   IJ to consider “the totality of the circumstances”); Xiu Xia

15   Lin, 534 F.3d at 165 (same).                   Bhai initially stated that his

16   visa petition “was a wrong and fake case.”                          Although he then

17   placed          the    blame    on     his   prior     attorney      for   submitting

18   incorrect documents, we defer to the IJ because the record

19   supports the IJ’s inference given all of the reasons for the

20   denial of the visa.                  See Siewe v. Gonzales, 480 F.3d 160,

21   167-68 (2d Cir. 2007).                 The IJ reasonably concluded that this

22   initial         false       attempt     to   obtain     an    immigration     benefit

                                                    4
1    undermined his credibility as a whole.             See Siewe, 480 F.3d

2    at 170 (“We have “frequently . . . held [that] an IJ’s

3    application     of     the    maxim falsus    in      uno,     falsus    in

4    omnibus [false in one thing, false in everything] may at times

5    be appropriate.” (internal quotation marks omitted)).1

6        Second,     the    agency   reasonably   concluded        that   Bhai’s

7    credibility was further undermined by his two return trips to

8    India   after    the       alleged   persecution.        See     8 U.S.C.

9    § 1158(b)(1)(B)(iii) (allowing consideration of any “relevant

10   factor”).     Although “return trips alone are insufficient to

11   establish     lack    of     credibility,”   where,      as     here,   an

12   applicant’s credibility is already in question, the agency

13   may consider voluntary return trips.            Kone v. Holder, 596

14   F.3d 141, 150 (2d Cir. 2010).          Bhai does not challenge the

15   agency’s reliance on this factor.            See Yueqing Zhang, 426

16   F.3d at 541 n.1, 545 n.7.

17       Third,     Bhai’s      corroborating   evidence    and    his    wife’s

18   testimony were insufficient to rehabilitate his credibility.


     1Bhai also argues that the IJ erred by faulting him for not
     calling his father to testify regarding the circumstances of
     the L visa petition because his father is deceased. However,
     Bhai did not raise this issue before the BIA, and it therefore
     has not been exhausted.     See Lin Zhong v. U.S. Dep’t of
     Justice, 480 F.3d 104, 122 (2d Cir. 2007) (requiring
     petitioner to exhaust issues before the BIA).
                                    5
1    See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)

2    (“An applicant’s failure to corroborate his . . . testimony

3    may bear on credibility, because the absence of corroboration

4    in   general   makes      an     applicant    unable    to     rehabilitate

5    testimony    that   has   already     been    called    into    question”).

6    Bhai’s    wife’s    testimony       did      not   rehabilitate     Bhai’s

7    credibility because she was an interested party and was not

8    a direct witness to the alleged persecution.                   See Xiao Ji

9    Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341-42 (2d Cir.

10   2006)    (concluding      that    weight     afforded    to     applicant’s

11   evidence in immigration proceedings “lies largely within the

12   discretion of the IJ” (internal brackets and quotation marks

13   omitted)).     The IJ also reasonably concluded that unsworn

14   letters from India lack indicia of reliability and were

15   entitled to little weight.          See id.; see also Y.C. v. Holder,

16   741 F.3d 324, 334 (2d Cir. 2013) (deferring to agency’s

17   decision to give little weight to letter from applicant’s

18   spouse in China); In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209,

19   215 (BIA 2010) (giving diminished weight to letters from

20   relatives because they were from interested witnesses not

21   subject to cross-examination), rev’d on other grounds by Hui

22   Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012).

                                          6
1        Given Bhai’s admission to filing a fake visa application

2    and his return trips to India despite the alleged persecution,

3    substantial    evidence    supports   the    adverse   credibility

4    determination.      That     determination   is   dispositive   of

5    withholding of removal and CAT relief because both claims are

6    based upon the same factual predicate.       See Paul v. Gonzales,

7    444 F.3d 148, 156-57 (2d Cir. 2006).

8        For the foregoing reasons, the petition for review is

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

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

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

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

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

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

15   34.1(b).

16                                  FOR THE COURT:
17                                  Catherine O’Hagan Wolfe,
18                                  Clerk of Court




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