Filed: Oct. 31, 2014
Latest Update: Mar. 02, 2020
Summary: 13-1891 Kaur v. Holder BIA Vomacka, IJ A097 545 907 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 NOT
Summary: 13-1891 Kaur v. Holder BIA Vomacka, IJ A097 545 907 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 NOTA..
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13-1891
Kaur v. Holder
BIA
Vomacka, IJ
A097 545 907
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 31st day of October, two thousand fourteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RICHARD C. WESLEY,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 PARMJEET KAUR,
14 Petitioner,
15
16 v. 13-1891
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Genet Getachew, Brooklyn, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; Emily Anne Radford,
27 Assistant Director; Kohsei Ugumori,
28 David Schor, Trial Attorneys, Office
29 of Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
4 review is DENIED.
5 Parmjeet Kaur, a native and citizen of India, seeks
6 review of an April 30, 2013, decision of the BIA affirming
7 an Immigration Judge’s (“IJ”) September 28, 2010, denial of
8 asylum, withholding of removal, and relief under the
9 Convention Against Torture (“CAT”). In re Parmjeet Kaur,
10 No. A097 545 907 (B.I.A. Apr. 30, 2013), aff’g No. A097 545
11 907 (Immig. Ct. N.Y. City Sept. 28, 2010). We assume the
12 parties’ familiarity with the underlying facts and
13 procedural history of this case.
14 Under the circumstances of this case, we have reviewed
15 both the BIA’s and IJ’s decisions. Yun-Zui Guan v.
16 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam).
17 The applicable standards of review are well established.
18 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562
19 F.3d 510, 513 (2d Cir. 2009).
20 For asylum applications, like Kaur’s, pre-dating the
21 REAL ID Act, an adverse credibility determination must be
22 based on “specific, cogent reasons” that “bear a legitimate
23 nexus” to the finding, and any discrepancy must be
2
1 “substantial” when measured against the record as a whole.
2 Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir. 2003)
3 (quotation marks and citation omitted). The agency need not
4 credit an applicant’s explanations for inconsistent
5 testimony unless those explanations would compel a
6 reasonable fact-finder to do so. Majidi v. Gonzales, 430
7 F.3d 77, 80-81 (2d Cir. 2005).
8 In finding Kaur not credible, the agency reasonably
9 relied on her conflicting account of whether two or three
10 police officers raped her, and the differences among her
11 multiple asylum applications. As to the rape, Kaur admits
12 that her written statement and testimony were inconsistent.
13 Kaur’s explanation is that a third person was present during
14 the rape. This explanation does not clarify why her
15 application stated she was raped by two individuals but she
16 testified explicitly that she was raped by three. A
17 reasonable factfinder would not be compelled to credit the
18 explanation, particularly given the specific and detailed
19 nature of her written statements and her testimony. Majidi,
20 430 F.3d at 80-81. Although Kaur argues that her testimony
21 and statement were consistent that there was a rape, she
22 cites no authority supporting her argument that
3
1 inconsistencies in major details about a claim may be
2 overlooked if the record is consistent on a general level.
3 As this inconsistency calls into question whether the rape
4 occurred, the agency properly considered it in making an
5 adverse credibility determination. Secaida-Rosales, 331
6 F.3d at 307-08.
7 Kaur argues the agency erred in considering her initial
8 asylum application, which set forth a different basis for
9 asylum than the amended asylum application she submitted on
10 the day of her merits hearing. Specifically, Kaur’s initial
11 application, filed in 2004, stated that her human and
12 women’s rights activism resulted in arrests and detentions,
13 and being tortured five times by “fanatic Hindus.” In 2010,
14 after documentation of her Canadian asylum proceedings was
15 submitted to the immigration court, Kaur amended her
16 application to remove the comments about activism and
17 Hindus. She instead asserted that she was targeted because
18 her father was suspected of interacting with terrorists and
19 the police arrested Kaur when she refused to disclose his
20 location to the police. This account was generally
21 consistent with Kaur’s Canadian asylum application. Kaur
22 admitted that she was never a human or women’s rights
4
1 activist, nor was she tortured five times by Hindus. When
2 asked to explain why she would make such representations,
3 Kaur initially replied she had “no knowledge,” but later
4 suggested her former attorney was to blame as he had not
5 translated the statement to her. The agency was not
6 compelled to credit Kaur’s explanations, as she swore to the
7 initial application and made no effort to pursue an
8 ineffective assistance complaint against her former
9 attorney. Majidi, 430 F.3d at 80-81; see also In re Lozada,
10 19 I. & N. Dec. 637 (BIA 1988) (setting forth regulations
11 for ineffective assistance claim).
12 Despite Kaur’s argument that the agency erred by
13 considering her original asylum application and supplemental
14 affidavit, case law supports the agency’s consideration of
15 both documents and its conclusion that the change in Kaur’s
16 story undermined her credibility. See, e.g., Borovikova v.
17 U.S. DOJ,
435 F.3d 151, 159-60 (2d Cir. 2006). Nor did the
18 IJ engage in speculation in finding that Kaur changed her
19 story to “beef up” her asylum claim after she was denied
20 asylum in Canada. That conclusion is tied to both the
21 timing and the content of the change. See Wensheng Yan v.
22 Mukasey,
509 F.3d 63, 66-67 (2d Cir. 2007) (per curiam).
23
5
1 Finally, Kaur challenges the agency’s finding that her
2 testimony changed regarding whether the police officers
3 involved in the rape were the same officers who arrested her
4 earlier in the day. Kaur testified that after she was
5 arrested by two police officers, the arresting officers and
6 a third officer raped her. Kaur testified that she knew the
7 third man was a police officer because he was present “when
8 they had arrested [her] before.” Although the agency found
9 this inconsistent with her testimony that she had been
10 arrested by two police officers that day, Kaur alleged two
11 arrests and the agency did not consider the possibility that
12 the third officer was present at the earlier arrest. Thus,
13 this finding does not support the adverse credibility
14 determination. Additionally, the IJ’s finding of an
15 inconsistency regarding where the rape occurred (which Kaur
16 does not challenge) is also unsupported; the IJ relied on a
17 conclusion in the Canadian asylum decision contradicted by
18 the Canadian asylum application. Absent further records,
19 there is no way to resolve the conflict.
20 However, remand is not warranted on these grounds.
21 Even absent these problematic findings, the agency’s adverse
22 credibility determination is supported by substantial
23 evidence. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
6
1 F.3d 315, 339 (2d Cir. 2006) (holding that remand not
2 required where agency would have reached same conclusion
3 absent erroneous findings). Considering Kaur’s conflicting
4 testimony regarding how many police officers raped her and
5 the differing claims of persecution alleged throughout the
6 proceedings, substantial evidence supports the adverse
7 credibility determination.
Secaida-Rosales, 331 F.3d at
8 307. As all of Kaur’s claims share the same factual
9 predicate, the adverse credibility determination is
10 dispositive of asylum, withholding of removal, and CAT
11 relief. Paul v. Gonzales,
444 F.3d 148, 155-57 (2d Cir.
12 2006).
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, any stay of
15 removal that the Court previously granted in this petition
16 is VACATED, and any pending motion for a stay of removal in
17 this petition is DISMISSED as moot. Any pending request for
18 oral argument in this petition is DENIED in accordance with
19 Federal Rule of Appellate Procedure 34(a)(2), and Second
20 Circuit Local Rule 34.1(b).
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
23
24
7
