Filed: Jun. 18, 2013
Latest Update: Mar. 28, 2017
Summary: 11-4463 Dangol v. Holder BIA Hom, A089 249 768 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: 11-4463 Dangol v. Holder BIA Hom, A089 249 768 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 ..
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11-4463
Dangol v. Holder
BIA
Hom,
A089 249 768
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 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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 18th day of June, two thousand thirteen.
5
6 PRESENT:
7 REENA RAGGI,
8 DEBRA ANN LIVINGSTON,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12 HIKMAT DANGOL,
13 Petitioner,
14
15 v. 11-4463
16 NAC
17 ERIC H. HOLDER, JR., UNITED STATES
18 ATTORNEY GENERAL,
19 Respondent.
20 _____________________________________
21
22 FOR PETITIONER: Dilli Raj Bhatta, New York, New
23 York.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Shelley R. Goad,
27 Assistant Director; Carmel A.
28 Morgan, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
32
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
4 is DENIED.
5 Hikmat Dangol, a native and citizen of Nepal, seeks
6 review of a September 30, 2011, order of the BIA affirming
7 the April 7, 2010, decision of an Immigration Judge (“IJ”),
8 which denied his applications for asylum, withholding of
9 removal, and relief under the Convention Against Torture
10 (“CAT”). In re Dangol, No. A089 249 768 (B.I.A. Sept. 30,
11 2011), aff’g No. A089 249 768 (Immig. Ct. N.Y. City Apr. 7,
12 2010). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed
15 the decisions of both the IJ and the BIA. See Yan Chen v.
16 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
17 standards of review are well-established. See 8 U.S.C.
18 § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey,
534 F.3d
19 162, 165-66 (2d Cir. 2008) (per curiam).
20 For asylum applications such as this one, governed by
21 the amendments made to the Immigration and Nationality Act
22 by the REAL ID Act of 2005, the agency may, considering the
23 totality of the circumstances, base a credibility finding on
2
1 an asylum applicant’s “demeanor, candor, or responsiveness,”
2 the plausibility of his or her account, and inconsistencies
3 in his or her statements, without regard to whether they go
4 “to the heart of the applicant’s claim.” See 8 U.S.C.
5 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. This
6 Court “defer[s] . . . to [the agency’s] credibility
7 determination unless, from the totality of the
8 circumstances, it is plain that no reasonable fact-finder
9 could make such an adverse credibility ruling.” Xiu Xia
10 Lin, 534 F.3d at 167.
11 In this case, the agency’s adverse credibility
12 determination is supported by substantial evidence that
13 takes the form of inconsistencies and evasive testimony
14 going to the heart of Dangol’s persecution claims. See Li
15 Zu Guan v. INS, 453 F.3d 129, 135 (2d Cir. 2006) (defining
16 “substantial evidence” as “such relevant evidence as a
17 reasonable mind might accept as adequate to support a
18 conclusion” (citations and internal quotation marks
19 omitted)). His testimony that he wrote an article critical
20 of Maoists in the Sumatara Patra newspaper in March 2007 was
21 inconsistent with a letter from that newspaper’s editor
22 stating that Dangol only wrote for the newspaper until 2006.
23 Dangol’s claim that he was never given an opportunity to
3
1 meaningfully explain that inconsistency is belied by the
2 Government’s repeated requests during the merits hearing
3 that he explain it. Dangol responded evasively to most of
4 those questions, and finally suggested that the editor-in-
5 chief might have forgotten about his work at the newspaper.
6 The agency permissibly took Dangol’s non-responsiveness into
7 account in forming its negative credibility determination.
8 See 8 U.S.C. § 1158(b)(1)(B)(iii). Moreover, the agency was
9 not required to specifically address his explanation as to
10 the inconsistency, since it is apparent from the BIA’s
11 decision that it found the explanation to be incredible
12 under the totality of the circumstances. See Xiao Ji Chen
13 v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir.
14 2006) (the agency is not required to “expressly parse or
15 refute on the record each and every one of [an applicant’s]
16 purported explanations for testimonial inconsistencies or
17 evidentiary gaps.”); cf. Pavlova v. INS,
441 F.3d 82, 89-90
18 (2d Cir. 2006) (“[W]here it is not apparent on the face of
19 the record that the [agency] has considered the applicant’s
20 responses to the [agency’s] credibility concerns, we . . .
21 require the [agency] to say enough to allow us to
22 understand, and to review, the reasons for rejecting the
23 applicant’s testimony.”). Since these inconsistencies and
4
1 evasiveness concerning Dangol’s claim that he faced
2 persecution on the basis of the articles he wrote –-
3 persecution that allegedly peaked following the publication
4 of the March 2007 article –- support the IJ’s credibility
5 determination, under a totality of the circumstances, we
6 defer to the agency’s finding. See Xiu Xia Lin, 534 F.3d at
7 167; 8 U.S.C. §1158(b)(1)(B)(iii).
8 Accordingly, as Dangol’s lack of credibility rendered
9 him unable to establish past persecution or a well-founded
10 fear of persecution, as was necessary to make out his asylum
11 claim, he was necessarily unable to meet the higher standard
12 for withholding of removal and CAT relief, as all three
13 claims rested on the same factual predicate. See Paul v.
14 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
15 For the foregoing reasons, the petition for review is
16 DENIED. As we have completed our review, Dangol’s pending
17 motions for a stay of removal and release from detention,
18 and the Respondent’s motion to expedite, are DISMISSED as
19 moot.1 Any pending request for oral argument in this
1
Because the agency’s adverse credibility
determination is the only issue properly before this
Court, Dangol’s motion for a remand for adjudication of
his pending visa petition is denied. Such a request must
be made before the BIA in the form of a motion to reopen.
See Xiao Xing Ni v. Gonzales, 494 F.3d 260, 269 (2d Cir.
2007); see also 8 C.F.R. § 1003.2(c)©. As the petition
and remand motion have been denied, the Government’s
5
1 petition is DENIED in accordance with Federal Rule of
2 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
3 34.1(b).
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
6
motion to strike Dangol’s supplemental papers is denied
as moot.
6
