Filed: Jul. 23, 2014
Latest Update: Mar. 02, 2020
Summary: 13-1876 Parajuli v. Holder BIA Zagzoug, IJ A200 733 428 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
Summary: 13-1876 Parajuli v. Holder BIA Zagzoug, IJ A200 733 428 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 ..
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13‐1876
Parajuli v. Holder
BIA
Zagzoug, IJ
A200 733 428
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.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 23rd day of July, two thousand fourteen.
PRESENT:
ROSEMARY S. POOLER,
RICHARD C. WESLEY,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
SABINA PARAJULI,
Petitioner,
v. 13‐1876
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Jason Nielson, Law Offices of Thomas Mungoven,
Esq., New York, NY.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney General;
Francis W. Fraser, Senior Litigation Counsel;
Christina J. Martin, Trial Attorney, Office of
Immigration Litigation, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED,
AND DECREED that the petition for review is DENIED.
Sabina Parajuli, a native and citizen of Nepal, seeks review of a April 24,
2013, decision of the BIA affirming the January 6, 2011, decision of Immigration
Judge (“IJ”) Randa Zagzoug, which denied her application for asylum,
withholding of removal, and relief under the Convention Against Torture
(“CAT”). In re Sabina Parajuli, No. A200 733 428 (B.I.A. Apr. 24, 2013), aff’g No.
A200 733 428 (Immig. Ct. N.Y. City Jan. 6, 2011). We assume the parties’
familiarity with the underlying facts and procedural history in this case.
Under the circumstances of this case, we have considered both the IJ’s and
the BIA’s opinions “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d
233, 237 (2d Cir. 2008) (internal quotation marks omitted). The applicable
standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B); Weng v.
Holder, 562 F.3d 510, 513 (2d Cir. 2009).
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For asylum applications, like Parajuli’s, governed by the amendments
made to the Immigration and Nationality Act by the REAL ID Act of 2005, the
agency may, “[c]onsidering the totality of the circumstances,” base a credibility
finding on an asylum applicant’s “demeanor, candor, or responsiveness,” the
plausibility of his account, and inconsistencies in his statements, without regard
to whether they go “to the heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey, 534 F.3d 162, 166 (2d Cir. 2008).
Furthermore, for purposes of a credibility determination, “[a]n inconsistency and
an omission are . . . functionally equivalent.” Id. at 166, n. 3. We “defer to an IJ’s
credibility determination unless, from the totality of the circumstances, it is plain
that no reasonable fact‐finder could make” such a ruling. Id. at 167. In this case,
the agency reasonably based its adverse credibility determination on Parajuli’s
demeanor, her vague and inconsistent testimony, inconsistencies between her
testimony and documentary evidence, and a lack of reliable documentary
evidence.
First, the IJ found that Parajuli’s testimony often seemed “flat” and
unpersuasive. We generally afford particular deference to an IJ’s assessment of
an applicant’s demeanor because the IJ’s ability to observe the witness places her
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in the best position to evaluate credibility. See Jin Chen v. U.S. Dep’t of Justice, 426
F.3d 104, 113 (2d Cir. 2005). We can be even “more confident in our review of
observations about an applicant’s demeanor” where, as here, those observations
“are supported by specific examples of inconsistent testimony.” Li Hua Lin v.
U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006).
With regard to the inconsistences, when describing alleged attacks by
police in 2006 and by two Maoists in 2009, her testimony was internally
inconsistent and inconsistent with her written statement. For example, as to the
2006 incident, Parajuli testified that she was attacked by the police and beaten
with batons, but could not remember any more detail and stated that she was
treated at the hospital for half an hour. As to the 2009 incident, two unidentified
people approached her and told her to support the Maoists; at one point, she
testified that she was essentially being strangled, but at another point she
testified that she could not remember the beating. Conversely, in her asylum
application, she stated that she was slapped and her head scarf ripped. Parajuli
also gave conflicting accounts of the medical treatment she received after the 2009
incident, stating at first that her legs were swollen, but that she did not receive
medical treatment, and later, that she did receive medical treatment but it was
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administered at home, which she did not include in her application. Further, she
testified that, just before leaving Nepal for the United States, her father told her
that unknown callers were asking about her whereabouts, but her father’s letter
did not mention the 2006 police beating or the phone calls.
Although Parajuli proffered explanations for these inconsistencies, the IJ
was not compelled to credit them. Majidi v. Gonzales, 430 F.3d 77, 80‐81 (2d Cir.
2005). Parajuli asserted that she did not realize that she had to include all of the
details about the beating in her application, but she did include other, different,
details in her application. Because Parajuli’s explanations were unconvincing,
the IJ reasonably relied on these inconsistencies. See Xiu Xia Lin, 534 F.3d at 166.
The IJ also reasonably found that Parajuli failed to corroborate her
testimony with reliable documentary evidence. An asylum applicantʹs failure to
corroborate her testimony may bear on her credibility, “because the absence of
corroboration in general makes an applicant unable to rehabilitate testimony that
has already been called into question.” See Biao Yang v. Gonzales, 496 F.3d 268,
273 (2d Cir. 2007). Aside from the evidence discussed above, which conflicted
with her testimony, Parajuli submitted a letter from the NCP, which the agency
reasonably discounted. See Xiao Ji Chen v. U.S. Depʹt of Justice, 471 F.3d 315, 342
5
(2d Cir. 2006). Indeed, the letter did not include details about her campaigning or
other activities in the party. Further, the letter states that she participated in the
movement from 2005‐2006, but does not support her contention that she was
active in the party since 2001. When asked to explain the omission, Parajuli
stated simply that she did not know why the information was not provided.
Because the REAL ID Act permits the agency to base a credibility finding
on any inconsistency, without regard to whether it goes “to the heart of the
applicant’s claim,” 8 U.S.C. § 1158(b)(1)(B)(iii), these inconsistences provide
substantial evidence supporting the agency’s adverse credibility determination,
particularly because they directly relate to Parajuli’s allegation of past harm. See
Xiu Xia Lin, 534 F.3d at 166, 167. Furthermore, the IJ allowed Parajuli an
opportunity to explain the inconsistencies, and reasonably rejected her
explanations. See Majidi, 430 F.3d at 80‐81.
Because the only evidence of a threat to Parajuli’s life or freedom depended
upon her credibility, the adverse credibility finding necessarily precludes success
on her claims for asylum, withholding of removal, and CAT relief. See Paul v.
Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice,
426 F.3d 520, 523 (2d Cir. 2005). Finally, the agency did not err in its
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determination that Parajuli failed to establish that it is more likely than not that
she would be tortured by the authorities if returned to Nepal. 8 C.F. R. §§
1208.16(c), 1208.18(a)(1). Parajuli failed to present any reliable evidence that she
would be tortured or that the government would acquiesce to her torture. To the
contrary, her evidence showed that after her 2009 encounter with the Maoists,
the police were responsive and investigated the incident. Cf. Khouzam v. Ashcroft,
361 F.3d 161, 171 (2d Cir. 2004).
For the foregoing reasons, the petition for review is DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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