Filed: Sep. 14, 2020
Latest Update: Sep. 14, 2020
Summary: 18-174 Pun v. Barr BIA Christensen, IJ A206 478 898 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: 18-174 Pun v. Barr BIA Christensen, IJ A206 478 898 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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18-174
Pun v. Barr
BIA
Christensen, IJ
A206 478 898
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 TO 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 14th day of September, two thousand twenty.
PRESENT:
JOSÉ A. CABRANES,
ROSEMARY S. POOLER,
DENNY CHIN,
Circuit Judges.
_____________________________________
KAPIL PUN,
Petitioner,
v. 18-174
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Dilli Raj Bhatta, Bhatta Law &
Associates, PLLC, New York, NY.
FOR RESPONDENT: Ethan P. Davis, Acting Assistant
Attorney General; Kohsei Ugumori,
Senior Litigation Counsel; Brett
F. Kinney, Attorney; Karen M.
Sams, Law Clerk, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC.
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.
Petitioner Kapil Pun, a native and citizen of Nepal,
seeks review of a December 26, 2017, decision of the BIA
affirming a May 31, 2017, decision of an Immigration Judge
(“IJ”) denying Pun’s application for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Kapil Pun, No. A 206 478 898 (B.I.A. Dec. 26,
2017), aff’g No. A 206 478 898 (Immig. Ct. N.Y. City May 31,
2017). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
We have reviewed the IJ’s decision as the agency’s final
order. See Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir.
2008). We review adverse credibility determinations for
substantial evidence. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei
Gao v. Sessions,
891 F.3d 67, 76 (2d Cir. 2018). “Considering
the totality of the circumstances, and all relevant factors,
a trier of fact may base a credibility determination on the
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demeanor, candor, or responsiveness of the applicant or
witness, . . . the consistency between the applicant’s . . .
written and oral statements . . . , the internal consistency
of each such statement, the consistency of such statements
with other evidence of record . . . , and any inaccuracies or
falsehoods in such statements . . . .” 8 U.S.C.
§ 1158(b)(1)(B)(iii). “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 an
adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534
F.3d 162, 167 (2d Cir. 2008); accord Hong Fei
Gao, 891 F.3d
at 76. The Government argues Pun failed to exhaust his
specific arguments on appeal to the BIA and thus forfeited
his right to challenge some of the agency’s findings here.
See Brito v. Mukasey,
521 F.3d 160, 164 (2d Cir. 2008). We
need not reach that issue, however, as even assuming his
arguments are not forefeited, substantial evidence supports
the IJ’s adverse credibility determination.
The IJ reasonably relied on Pun’s differing accounts of
his alleged persecution. See 8 U.S.C. § 1158(b)(1)(B)(iii).
Pun omitted from his written statement that Maoists attempted
to abduct him by forcing him into a van; and the IJ did not
3
err in relying on the omission given Pun’s inclusion of less
serious telephonic kidnapping threats. See Hong Fei Gao, 891
F.3d at 78-79 (“[I]n assessing the probative value of the
omission of certain facts, an IJ should consider whether those
facts are ones that a credible petitioner would reasonably
have been expected to disclose under the relevant
circumstances”); Xian Tuan Ye v. Dep’t of Homeland Sec.,
446
F.3d 289, 295 (2d Cir. 2006) (holding that “material
inconsistency in an aspect of [an applicant’s] story that
served as an example of the very persecution from which he
sought asylum . . . afforded substantial evidence to support
the adverse credibility finding.” (internal quotation marks
and citation omitted)). Pun’s explanation that he did not
remember the details of the attack because it occurred more
than four years before the hearing did not compellingly
explain this omission because his written statement was
prepared a year earlier. See Majidi v. Gonzales,
430 F.3d
77, 80 (2d Cir. 2005) (“A petitioner must do more than offer
a plausible explanation for . . . inconsistent statements to
secure relief; he must demonstrate that a reasonable fact-
finder would be compelled to credit his testimony.” (internal
quotations omitted)).
4
The IJ also reasonably concluded that Pun’s statements
conflicted with letters from his friends and father because
each provided different accounts of how, when, and with whom
Pun received medical treatment following the attack. The IJ
was not compelled to accept Pun’s explanation—mutual
forgetfulness resulting from the passage of time—which did
not resolve the inconsistencies. See Majidi, 430 F.3d at 80.
Though we do not require petitioners to recall the aftermath
of an alleged attack in precise detail, Hong Fei
Gao, 891 F.3d
at 80, the agency may, as here, “draw an adverse inference
from [a petitioner’s] failure to recall the particulars of
what happened” after a “profound” event, Tu Lin v. Gonzales,
446 F.3d 395, 403 (2d Cir. 2006).
Similarly, Pun’s testimony and written statement were
internally inconsistent regarding when he joined the Nepali
Student Union (“NSU”) and contradicted his witnesses’
statements as to his level of involvement with the group.
The IJ reasonably relied on these discrepancies because Pun’s
affiliation with the group was the alleged reason he was
targeted by the Maoists. See Xian Tuan Ye, 446 F.3d at 295.
Moreover, the IJ was not required to accept Pun’s explanation
for these inconsistencies, which largely parsed his
5
witnesses’ use of words like “organize” and “active” and
failed to explain why his witnesses characterized him as a
group leader when Pun disclaimed a leadership role. See
Majidi, 430 F.3d at 80.
The IJ reasonably concluded that Pun’s lack of
familiarity with his own evidence further undermined his
credibility. Pun could not identify a request for security
from the Nepali government filed on his behalf, which was
also inconsistent with his testimony that he did not report
the attack to the authorities, or an NSU letter attesting to
his membership. See id. Moreover, given the lack of
familiarity with his documentary evidence, the
inconsistencies between Pun’s statements and the evidence,
and the fact that the authors were not available for cross
examination, Pun’s evidence did not rehabilitate his
credibility. See Biao Yang v. Gonzales,
496 F.3d 268, 273
(2d Cir. 2007) (“An applicant’s failure to corroborate his
. . . testimony may bear on credibility, because the absence
of corroboration in general makes an applicant unable to
rehabilitate testimony that has already been called into
question.”); see also Y.C. v. Holder,
741 F.3d 324, 332 (2d
Cir. 2013) (“We generally defer to the agency’s evaluation of
6
the weight to be afforded an applicant’s documentary
evidence.”).
Given the inconsistencies and the lack of reliable
corroboration, the “totality of the circumstances” supports
the adverse credibility determination. See 8 U.S.C.
§ 1158(b)(1)(B)(iii). This determination is dispositive of
asylum, withholding of removal, and CAT relief because all
three claims were based on the same factual predicate. See
Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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