Filed: Dec. 17, 2014
Latest Update: Mar. 02, 2020
Summary: 13-594 Gurung v. Holder BIA Videla, IJ A099 697 077 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: 13-594 Gurung v. Holder BIA Videla, IJ A099 697 077 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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13-594
Gurung v. Holder
BIA
Videla, IJ
A099 697 077
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 17th day of December, two thousand fourteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 ROBERT D. SACK,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 BIPULA GURUNG,
14 Petitioner,
15
16 v. 13-594
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Julie Mullaney, Mount Kisco, New
24 York.
25
26 FOR RESPONDENT: Stuart F. Delery, Deputy Assistant
27 Attorney General; Ernesto H. Molina,
28 Assistant Director; Nancy N. Safavi,
29 Trial Attorney, Office of
30 Immigration Litigation, United
1 States Department of Justice,
2 Washington, D.C.
3
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Bipula Gurung, a native and citizen of Nepal, seeks
9 review of a January 31, 2013, decision of the BIA affirming
10 an Immigration Judge’s (“IJ”) August 31, 2011, denial of her
11 application for asylum, withholding of removal, and relief
12 under the Convention Against Torture (“CAT”). In re Bipula
13 Gurung, No. A099 697 077 (B.I.A. Jan. 31, 2013), aff’g No.
14 A099 697 077 (Immig. Ct. N.Y. City Aug. 31, 2011). We
15 assume the parties’ familiarity with the underlying facts
16 and procedural history in this case.
17 Under the circumstances of this case, we have reviewed
18 the IJ’s decision as modified and supplemented by the BIA.
19 See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
20 522 (2d Cir. 2005); Yan Chen v. Gonzales,
417 F.3d 268, 271
21 (2d Cir. 2005). The applicable standards of review are well
22 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
23 Holder,
562 F.3d 510, 513 (2d Cir. 2009).
24 For applications such as Gurung’s, governed by the REAL
2
1 ID Act of 2005, the agency may, “[c]onsidering the totality
2 of the circumstances,” base a credibility finding on the
3 applicant’s “demeanor, candor, or responsiveness,” the
4 plausibility of her account, and inconsistencies in her
5 statements, “without regard to whether” they go “to the
6 heart of the applicant’s claim.” 8 U.S.C.
7 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
8 167 (2d Cir. 2008) (per curiam). We “defer therefore to an
9 IJ’s credibility determination unless, from the totality of
10 the circumstances, it is plain that no reasonable fact-
11 finder could make such an adverse credibility ruling.” Xiu
12 Xia
Lin, 534 F.3d at 167.
13 Here, the IJ reasonably based the adverse credibility
14 determination on inconsistencies among (and an omission in)
15 Gurung’s testimony, application, and documentary evidence.
16 As the agency found, the record reflects numerous
17 inconsistencies related to Gurung’s claim that Maoists
18 targeted her based on her political opposition and refusal
19 to fund them. Gurung testified that she protested Maoists’
20 financial demands at her hotel company’s meeting on
21 political grounds, though her application stated she argued
22 financial hardship, and she ultimately conceded that she had
3
1 not voiced any political views. She provided inconsistent
2 dates for her employment with the hotel and another employer
3 (Cunard), and when she attended college. Similarly, it was
4 questionable whether she was in Nepal when she said she was
5 kidnapped and assaulted by Maoists: she testified that the
6 attack happened between August 2004 and February 2005, but
7 could not explain why her passport contained entries (a
8 Nepali exit stamp dated August 2004 and a Maltese entry
9 stamp from November 2004) that place her outside of Nepal
10 during that period. The particulars of her kidnapping also
11 changed: she testified that a Maoist displayed a gun to her
12 to force her into a private van, but her application states
13 that she was only told about the gun and was taken in a
14 taxi.
15 Gurung’s testimony also conflicted with evidence of her
16 involvement with a pro-democracy student union: (1) she
17 testified that she was the union chairperson, though letters
18 from the union did not so indicate, and she later denied
19 being a chairperson; (2) she testified to joining the union
20 in 1997 and 1996, but the letters indicated both 1995 and
21 1997, and her application stated 1995; (3) she testified
22 that the union letter with the 1997 date was a correction,
4
1 but both letters reflected the same issue date; and (4) she
2 testified that she collected the letters, but then stated
3 that someone else did. She further undermined her
4 credibility by testifying that she had declared all her
5 income in her 2009 and 2010 tax returns, but the returns
6 reflected less than half of her purported wages.
7 Gurung has failed to resolve these discrepancies. She
8 cited bad memory and ignorance of the tax laws. The IJ
9 reasonably expected her to remember important events; and
10 Gurung admitted that she could read English and knew that
11 she made more money than the amount reported for taxes. See
12 Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005)
13 (holding that an IJ is not required to credit an explanation
14 for an inconsistency unless a reasonable fact finder would
15 be compelled to do so). Nor was the IJ compelled to credit
16 Gurung’s explanation that a private van and taxi are the
17 same in Nepal because she did not offer this explanation
18 when first confronted with the inconsistency. See
id. The
19 IJ therefore reasonably relied on these inconsistencies and
20 omission to support the adverse credibility determination.
21 Given that the inconsistencies affect every part of Gurung’s
22 testimony, calling into question not only her allegations of
23 past harm, but whether she was even present in Nepal at the
5
1 relevant time, the totality of the circumstances supports
2 the adverse credibility determination. See 8 U.S.C.
3 §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d
4 at 167. The adverse credibility determination in this case
5 necessarily precludes success on Gurung’s claims for asylum,
6 withholding of removal, and CAT relief, because the only
7 evidence of a threat to Gurung’s life or freedom, or
8 likelihood of torture, depended upon her credibility and she
9 did not independently establish eligibility. Paul v.
10 Gonzales,
444 F.3d 148, 156 (2d Cir. 2006).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DISMISSED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
22
6
