Kaucha v. Lynch ( 2015 )

13-2981
Kaucha v. Lynch
BIA
Poczter, IJ
A200 696 363
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
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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 15th day of December, two thousand fifteen.
PRESENT:
JOSÉ A. CABRANES,
PETER W. HALL,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
YAM KUMAR KAUCHA,
Petitioner,
v. 13-2981
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Khagendra Gharti Chhetry, New York,
NY.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Linda S. Wernery, Assistant
Director; Gregory M. Kelch, 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.
Yam Kumar Kaucha, a native and citizen of Nepal, seeks
review of a July 10, 2013, decision of the BIA affirming the
September 20, 2011, decision of an Immigration Judge (“IJ”)
denying his application for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”). In
re Yam Kumar Kaucha, No. A200 696 363 (B.I.A. July 10,
2013), aff’g No. A200 696 363 (Immig. Ct. N.Y. City Sept.
20, 2011). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision, including the portions not explicitly
discussed by 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); Yanqin
Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
For an asylum applications like Kumar Kaucha’s,
governed by the REAL ID Act of 2005, the agency may,
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“[c]onsidering the totality of the circumstances,” base a
credibility finding on an asylum applicant’s “demeanor,
candor, or responsiveness,” the plausibility of his account,
and inconsistencies in his statements, without regard to
whether they go “to the heart of the applicant’s claim,” so
long as they reasonably support an inference that the
applicant is not credible. 8 U.S.C. § 1158(b)(1)(B)(iii);
see Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
2008). 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 a ruling.
Xiu Xia Lin, 534 F.3d at 167. Here, the agency’s adverse
credibility finding is supported by the record.
Kumar Kaucha claimed that he had been persecuted and
feared future persecution in Nepal by the Maoists because he
was a member of the Rastriya Prajatantra Party (“RPP”). In
support of his application, Kumar Kaucha submitted what he
claimed was his RPP membership card. The card is written in
English on one side, and along the top states the RPP
slogan, “Nationality Democracy Liberalism.” However,
“liberalism” is spelled incorrectly, as the word is missing
the “a.” Furthermore, the membership card included a
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picture of Kumar Kaucha, and when asked how his photograph
appeared on the card, Kumar Kaucha first testified that he
took the photograph of himself, and gave it to an RPP
member. He then testified that an RPP member took the
picture of him, using an RPP camera. The IJ concluded that
although the discrepancy was minor, it weighed on the
already “dubious nature” of the card.
Kumar Kaucha also submitted what he alleged was an
original letter from the Maoist party threatening him and
attempting to extort money from him. Kumar Kaucha testified
that he received the letter in 1999, and it was given to him
in an envelope about a third of the size of the letter
itself, which was on standard letter paper. However, the IJ
noted that the letter was “in completely pristine condition”
and did not appear “to have ever been folded.” Neither
party disputes the IJ’s description of the original. The IJ
reasonably concluded that the typographical error in the RPP
membership card, and the condition of the threatening
letter, called into question the validity of those
documents, and consequently impugned Kumar Kaucha’s
credibility. See Siewe v. Gonzales, 480 F.3d 160, 168-69
(2d Cir. 2007).
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Kumar Kaucha testified that in 2005, the RPP split into
two parties – the original RPP and a faction called RPP
Nepal. He further testified that although he had been a
member of the RPP since the early 1990s, when he returned to
Nepal from Dubai in 2008, he joined RPP Nepal. In his
application, Kumar Kaucha stated that when he returned to
Nepal in 2008, he worked for RPP. When asked about this
apparent discrepancy, Kumar Kaucha testified that he did not
mention his membership in RPP Nepal because he was only a
member for a short time, from 2008 until he left Nepal in
2009. However, in his written statement, Kumar Kaucha
claimed that the Maoists assaulted him in 1999 because he
was an active member of the RPP and would not give them
money. He further claimed that the Maoists threatened him
again in 2009, which is why he left Nepal for the United
States. When asked during proceedings why the Maoists were
still intent on harming him ten years after the initial
assault, particularly given that he had been living in Dubai
for five years, Kumar Kaucha testified that it was because
when he returned to Nepal in 2008, he spoke out at rallies
and political functions, a precipitating factor he did not
mention in his written statement. That testimony
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contradicted his earlier explanation regarding a brief,
inconsequential membership in RPP Nepal.
The REAL ID Act allows the agency to base a credibility
finding on any inconsistency, without regard to whether it
goes “to the heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii). Kumar Kaucha’s inconsistent and
implausible documentary and testimonial evidence provide
substantial evidence to support the agency’s adverse
credibility determination. See Xiu Xia Lin, 534 F.3d at
166, 167. Furthermore, Kumar Kaucha was confronted with the
inconsistencies during proceedings, and the IJ reasonably
found that he did not adequately explain them. See Majidi
v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). As a
result, the totality of the circumstances supports the
agency’s adverse credibility determination. 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. Because
the only evidence of a threat to Kumar Kaucha’s life or
freedom depended upon his credibility, the finding
necessarily precludes success on Kumar Kaucha’s claims for
asylum, withholding of removal, and CAT relief. See Paul v.
Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
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For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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