Kumar v. Garland ( 2022 )

20-1799
Kumar v. Garland
BIA
Schoppert, IJ
A205 935 067
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
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 18th day of October, two thousand twenty-
5 two.
6
7 PRESENT:
8 REENA RAGGI,
9 JOSEPH F. BIANCO,
10 STEVEN J. MENASHI,
11 Circuit Judges.
12 _____________________________________
13
14 ASHOK KUMAR,
15 Petitioner,
16
17 v. 20-1799
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Heena Arora, Esq., Richmond Hill,
25 NY.
26
27 FOR RESPONDENT: Brian M. Boynton, Acting
28 Assistant Attorney General;
1 Anthony C. Payne, Assistant
2 Director; Judith R. O’Sullivan,
3 Trial Attorney, Office of
4 Immigration Litigation, United
5 States Department of Justice,
6 Washington, DC.
7
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is DENIED.
12 Petitioner Ashok Kumar, a native and citizen of India,
13 seeks review of a May 13, 2020 decision of the BIA affirming
14 an April 16, 2018 decision of an Immigration Judge (“IJ”)
15 denying his application for asylum, withholding of removal,
16 and relief under the Convention Against Torture (“CAT”). In
17 re Ashok Kumar, No. A205 935 067 (B.I.A. May 13, 2020), aff’g
18 No. A205 935 067 (Immig. Ct. N.Y. City Apr. 16, 2018). We
19 assume the parties’ familiarity with the underlying facts and
20 procedural history.
21 Under the circumstances, we have reviewed both the IJ’s
22 and the BIA’s opinions. See Wangchuck v. Dep’t of Homeland
23 Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review the
24 agency’s adverse credibility determination for substantial
25 evidence, see Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d
26 Cir. 2018); and “the administrative findings of fact are
2
1 conclusive unless any reasonable adjudicator would be
2 compelled to conclude to the contrary,” 8 U.S.C.
3 § 1252(b)(4)(B). Substantial evidence supports the agency’s
4 determination that Kumar was not credible when he claimed
5 that Congress Party members twice beat him because he was a
6 member of the Indian National Lok Dal (“INLD”) Party.
7 “Considering the totality of the circumstances, and all
8 relevant factors, a trier of fact may base a credibility
9 determination on . . . the consistency between the applicant’s
10 or witness’s written and oral statements (whenever made and
11 whether or not under oath, and considering the circumstances
12 under which the statements were made), the internal
13 consistency of each such statement . . . , and any
14 inaccuracies or falsehoods in such statements.” 8 U.S.C.
15 § 1158(b)(1)(B)(iii). And, contrary to Kumar’s contention,
16 “an IJ may rely on any inconsistency,” Xiu Xia Lin v. Mukasey,
17 534 F.3d 162, 167 (2d Cir. 2008), “without regard to whether
18 [it] . . . goes to the heart of the applicant’s claim,”
19 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
20 credibility determination unless, from the totality of the
21 circumstances, it is plain that no reasonable fact-finder
22 could make such an adverse credibility ruling.” Xiu Xia Lin,
3
1 534 F.3d at 167; accord Hong Fei Gao, 891 F.3d at 76.
2 Here, the agency reasonably relied on the inconsistency
3 between Kumar’s asylum application, his political party’s
4 written statement, and his father’s and family friend’s
5 affidavits, all of which reported that Kumar joined the INLD
6 Party in India in November 2013, and record evidence that
7 Kumar had arrived in the United States in June 2013, some
8 five months earlier. See 8 U.S.C. § 1158(b)(1)(B)(iii).
9 Contrary to Kumar’s contention, the IJ gave him ample
10 opportunity to explain this inconsistency, but he could not
11 do so compellingly. See Majidi v. Gonzales, 430 F.3d 77, 80
12 (2d Cir. 2005) (“A petitioner must do more than offer a
13 plausible explanation for his inconsistent statements to
14 secure relief; he must demonstrate that a reasonable fact-
15 finder would be compelled to credit his testimony.”
16 (quotation marks omitted)). There is no merit to Kumar’s
17 argument that the November 2013 dates were the result of
18 translation errors. The original Hindi version of his family
19 friend’s affidavit provided the 2013 date in Arabic numerals;
20 and the original Hindi versions of the other two supporting
21 documents (if they exist) are not in the record. Further,
22 although Kumar later submitted new statements from himself,
4
1 his political party, his father, and his family friend, none
2 of those documents explained the purported prior errors. See
3 id.4 The agency also reasonably found implausible Kumar’s
5 testimony that he had not provided any guidance to his father,
6 family friend, or political party as to what to write in their
7 supporting statements, given that all three of them provided
8 the same exact “incorrect” date of November 15, 2013. See
9 8 U.S.C. § 1158(b)(1)(B)(iii); Siewe v. Gonzales, 480 F.3d
10 160, 169 (2d Cir. 2007) (recognizing that adverse credibility
11 determination may be based on inherent implausibility if the
12 finding “is tethered to the evidentiary record” or “record
13 facts . . . viewed in the light of common sense and ordinary
14 experience”).
15 The agency also reasonably found Kumar’s credibility
16 impugned by the nearly identical language used in his father’s
17 and family friend’s initial affidavits. See Mei Chai Ye v.
18 U.S. Dep’t of Justice, 489 F.3d 517, 524 (2d Cir. 2007)
19 (“[T]his court has . . . firmly embraced the commonsensical
20 notion that striking similarities between affidavits are an
21 indication that the statements are ‘canned.’”); Singh v. BIA,
22 438 F.3d 145, 148 (2d Cir. 2006) (upholding adverse
5
1 credibility determination partly based on significantly
2 similar language in supporting affidavits).
3 The noted inconsistencies, implausibilities, and
4 similarities constitute substantial evidence supporting the
5 agency’s adverse credibility determination. See 8 U.S.C.
6 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167; see also
7 Likai Gao v. Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020)
8 (“[E]ven a single inconsistency might preclude an alien from
9 showing that an IJ was compelled to find him credible.
10 Multiple inconsistencies would so preclude even more
11 forcefully.”). That adverse credibility determination is
12 dispositive of Kumar’s claims for asylum, withholding of
13 removal, and CAT relief because all three rest on the same
14 factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156–
15 57 (2d Cir. 2006).
16 For the foregoing reasons, the petition for review is
17 DENIED. All pending motions and applications are DENIED and
18 stays VACATED.
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe,
21 Clerk of Court
6