Filed: Nov. 17, 2014
Latest Update: Mar. 02, 2020
Summary: 13-2390 Gurung v. Holder BIA Vomacka, IJ A087 467 399 A087 467 400 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 DATABAS
Summary: 13-2390 Gurung v. Holder BIA Vomacka, IJ A087 467 399 A087 467 400 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..
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13-2390
Gurung v. Holder
BIA
Vomacka, IJ
A087 467 399
A087 467 400
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 17th day of November, two thousand fourteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
DENNY CHIN,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
BINI PRASAD GURUNG, TIKA PRASAD
GURUNG, AKA TIKA KUMARI,
Petitioners,
v. 13-2390
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONERS: Khagendra Gharti Chhetry, Chhetry &
Associates, P.C., New York, NY.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Carl McIntyre, Assistant
Director; Sharon M. Clay, 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.
Petitioners Bini and Tika Prasad Gurung, married
natives and citizens of Nepal, seek review of a May 22, 2013
order of the BIA, affirming the January 13, 2012 decision of
an Immigration Judge (“IJ”), which denied asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Bini Prasad Gurung, Tika
Prasad Gurung, Nos. A087 467 399/400 (B.I.A. May 22, 2013),
aff’g Nos. A087 467 399/400 (Immig. Ct. New York City Jan.
13, 2012). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
Under the circumstances of this case, we review the
decisions of both the IJ and the BIA. Yun-Zui Guan v.
Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable
standards of review are well established. See 8 U.S.C.
§ 1252(b)(4)(B); see also Yanqin Weng v. Holder,
562 F.3d
510, 513 (2d Cir. 2009); Xiu Xia Lin v. Mukasey,
534 F.3d
162, 165-66 (2d Cir. 2008) (per curiam).
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For applications such as Petitioners’, which are
governed by the REAL ID Act, the agency may base a
credibility finding on an applicant’s demeanor, 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);
Matter of J-Y-C-, 24 I. & N. Dec. 260, 265 (B.I.A. 2007).
“We defer therefore to an IJ’s credibility determination
unless, from the totality of the circumstances, it is plain
that no reasonable fact-finder could make such an adverse
credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
Initially, the agency’s credibility determination was
properly based on the inconsistency regarding Bini’s length
of membership in the Nepali Congress Party. 8 U.S.C.
§ 1158(b)(1)(B)(iii). Bini first testified that he was no
longer a member of the Nepali Congress Party but later
testified that he has remained an active party member.
Although Petitioners argue that Bini merely testified that
he resigned from his position as party ward chief and not
from the party itself, this contention is belied by the
record.
3
The agency’s credibility determination was also
properly based on the inconsistency between Bini’s and
Tika’s testimony about whether Tika received phone calls
from the Maoists after 2001. 8 U.S.C. § 1158(b)(1)(B)(iii).
Bini testified that Tika received threatening phone calls
while he was working in Iraq in 2006; however, Tika
testified that she had not received any calls from the
Maoists since moving to Pokhara in 2001.
In addition, the agency’s adverse credibility
determination was reasonably based on the inconsistency
regarding the length of Bini’s beating. 8 U.S.C.
§ 1158(b)(1)(B)(iii). Bini testified that he was beaten for
a half-hour to an hour; however, Tika testified that Bini’s
beating lasted only minutes. While Petitioners contend that
Bini was referring to the length of the entire incident and
Tika was referring to the duration of the physical attack,
“support for a contrary inference—even one more plausible or
more natural—does not suggest error.” Siewe v. Gonzalez, 480
F.3d 160, 168 (2d Cir. 2007).
Although Petitioners also contend that the agency
improperly relied on the omission from Bini’s application
statement that he sought medical treatment for his injuries
4
from the Maoists’ beating, for purposes of analyzing a
credibility determination, “[a]n inconsistency and an
omission are . . . functionally equivalent.” Xiu Xia Lin,
534 F.3d at 166.
Having reasonably called Bini’s credibility into
question, the agency did not err in finding that his failure
to provide sufficient corroborative evidence further
undermined his credibility. 8 U.S.C. § 1158(b)(1)(B)(ii).
We have recognized that an applicant’s failure to
corroborate his testimony may bear on credibility, either
because the absence of particular corroborating evidence is
viewed as suspicious, or because the absence of
corroboration 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) (per
curiam). The agency reasonably accorded diminished weight
to Bini’s medical and party affiliation letters because they
did not describe contemporaneous events and their authors
were unavailable for cross-examination. See Matter of H-L-H
& Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010), overruled
on other grounds by Hui Lin Huang v. Holder,
677 F.3d 130
(2d Cir. 2012) (according diminished weight to letters
because, inter alia, they did not describe contemporaneous
5
events and their authors were unavailable for
cross-examination); Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 342 (2d Cir. 2006) (holding that the weight
accorded to the applicant’s evidence in immigration
proceedings lies largely within the discretion of the
agency). Petitioners do not challenge the IJ’s finding that
they failed to provide a corroborative letter from their
daughter in Nepal despite having sufficient time to do so.
Based on the foregoing, we find that the agency’s
adverse credibility determination is supported by
substantial evidence because it cannot be said “that no
reasonable fact-finder could make such an adverse
credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. The
agency therefore did not err in denying asylum, withholding
of removal, and CAT relief because all three claims shared
the same factual predicate. 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).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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