                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-11-2007

Gurung v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1066




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                                                               NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                    No. 06-1066



                               HEMRAJ GURUNG,
                                           Petitioner
                                     v.

               ATTORNEY GENERAL OF THE UNITED STATES,
                                       Respondent



                         On Petition for Review of an Order
                        of the Board of Immigration Appeals
                                 (No. A79-307-224)
                      Immigration Judge: Hon. Annie S. Garcy


                     Submitted Under Third Circuit LAR 34.1(a)
                                December 10, 2007

        Before: SLOVITER, AMBRO, Circuit Judges, and RESTANI*, Judge


                            (Filed: December 11, 2007)


                                     OPINION


SLOVITER, Circuit Judge.


                 *
                   Hon. Jane A. Restani, Chief Judge, United States Court of
          International Trade, sitting by designation.
                                             I.

       Hemraj Gurung, a native of Bhutan, overstayed his authorization to remain in the

United States in violation of section 237(a)(1)(B) of the Immigration and Nationality Act

(“INA”). Gurung maintained that his political activities in Bhutan, Nepal, and India

advocating for democracy in Bhutan prevented his safe return to his home country.

       The Immigration and Naturalization Service (“INS”)1 charged Gurung with

removability. Gurung appeared before an Immigration Judge (“IJ”), conceded his

removability, and sought relief, including political asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”). The IJ granted Gurung’s

asylum application, subject to reopening if the INS obtained evidence that a letter

purportedly from the United Nations High Commissioner for Refugees (“UNHCR”) in

support of Gurung was in fact fraudulent. The INS filed a motion to reopen proceedings

with evidence that this document was fraudulent. The IJ granted the motion and vacated

the order granting asylum.

       At a merits hearing on Gurung’s application on November 10, 2003, Gurung’s

counsel acknowledged that the introduction of the false UNHCR letter created a

presumption of adverse credibility, but Gurung testified that he feared persecution in

Bhutan for his political activities. He testified to having been arrested and beaten in


                    1
                   The functions of the INS were transferred to the
            Department of Homeland Security as of March 1, 2003. See 6
            U.S.C. § 271 (2002).


                                              2
August 1989 for writing a newspaper article critical of the condition of a school he had

attended. He also testified to having been arrested by Bhutanese police in India in

December 1989 and imprisoned, interrogated, and beaten for two months. He was

released only after he agreed in writing to refrain from further political activity but was

re-arrested one week later in his village in Bhutan, and detained for a week at the police

station, released to spy for the government. Gurung asserted he then lived in India for

approximately two years, where he was arrested and detained, and arrested twice in Nepal

following political demonstrations, and detained for two to three hours each time.

Gurung admitted that he had obtained false documentation for a visa to enter the United

States.

          The IJ found that Gurung lacked credibility and failed to establish his identity and

nationality, and denied Gurung’s applications for asylum and withholding of removal.

The BIA affirmed without opinion.

                                                II.

          We need not set forth the applicable legal propositions, as the parties are well

aware of them. In finding Gurung incredible, the IJ noted the false letter purportedly

from the UNHCR, the false documents Gurung obtained to enter the United States, and

statements in support of Gurung from individuals who had obtained these false

documents. The IJ further found that it is “implausible” that the Bhutanese government

would consider Gurung to be a threat, given that his main action against the government

was a letter he published in a newspaper criticizing the state of repair of a school in 1989.

                                                3
In addition, the IJ found indication that the newspaper clipping Gurung submitted as

evidence was a fabrication. Also, the IJ noted the possibility that Gurung had been

arrested in India for immigration violations or a crime, as opposed to political activity.

Finally, the IJ highlighted vagueness and inconsistencies in Gurung’s testimony about his

identity and nationality, time spent in Nepal and India, and dates of his arrests.

       The IJ’s adverse credibility finding was founded on evidence in the record, rather

than mere conjecture, and the questionable evidence highlighted by the IJ goes to the

heart of Gurung’s claim for asylum.2 Berishaj v. Ashcroft, 378 F.3d 314, 323 (3d Cir.

2004); Xie v. Ashcroft, 359 F.3d 239, 246 (3d Cir. 2004). Therefore, the IJ did not err in

concluding that Gurung had not established with credible evidence past persecution or a

well-founded fear of future persecution if he were to return to Bhutan.

                                             III.

       We conclude that substantial evidence supports the IJ’s adverse credibility

determination. Because the IJ found that Gurung had not successfully established an

asylum claim, the IJ did not err in concluding that Gurung necessarily did not meet the

burden for withholding of removal under the INA or CAT. Accordingly, we will deny

the petition for review.


                    2
                     Because this claim for asylum was filed prior to the
             effective date of the REAL ID Act of 2005’s new credibility
             determination standard (see 8 U.S.C. § 1158(b)(1)(B)(iii)), we
             review the IJ’s finding under our case law which predated the
             REAL ID Act. Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir.
             2007).

                                              4
