Patel v. Sessions , 699 F. App'x 48 ( 2017 )

16-384
Patel v. Sessions
BIA
Leeds, IJ
A200 955 082
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.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 20th day of October, two thousand seventeen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 DEBRA ANN LIVINGSTON,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 RAKESH VITTHALDAS PATEL,
14 Petitioner,
15
16 v. 16-384
17 NAC
18 JEFFERSON B. SESSIONS, III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gopal T. Kukreja, Syosset, NY.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Eric W.
27 Marsteller, Senior Litigation
28 Counsel; Edward C. Durant, Attorney,
29 Office of Immigration Litigation,
30 United States Department of Justice,
31 Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Rakesh Vitthaldas Patel, a native and citizen
6 of India, seeks review of a January 13, 2016, decision of the
7 BIA affirming a September 4, 2014, decision of an Immigration
8 Judge (“IJ”) denying Patel’s application for asylum,
9 withholding of removal, and relief under the Convention Against
10 Torture (“CAT”). In re Rakesh Vitthaldas Patel, No. A200 955
11 082 (B.I.A. Jan. 13, 2016), aff’g No. A200 955 082 (Immig. Ct.
12 N.Y. City Sept. 4, 2014). We assume the parties’ familiarity
13 with the underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed both
15 the IJ’s and the BIA’s opinions “for the sake of completeness.”
16 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
17 2006). The applicable standards of review are well
18 established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
19 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
20 For asylum applications like Patel’s, governed by the REAL
21 ID Act, the agency may, “[c]onsidering the totality of the
22 circumstances,” base a credibility finding on inconsistencies
2
1 in an asylum applicant’s statements and other record evidence
2 “without regard to whether” those inconsistencies go “to the
3 heart of the applicant’s claim.” 8 U.S.C.
4 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 163-64.
5 “We defer . . . to an IJ’s credibility determination unless .
6 . . it is plain that no reasonable fact-finder could make such
7 an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167;
8 see also Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005)
9 (“[O]ur review is designed to ensure merely that credibility
10 findings are based upon neither a misstatement of the facts in
11 the record nor bald speculation or caprice” (internal citation
12 and quotation marks omitted)). Further, “[a] petitioner must
13 do more than offer a plausible explanation for his inconsistent
14 statements to secure relief; he must demonstrate that a
15 reasonable fact-finder would be compelled to credit his
16 testimony.” Majidi, 430 F.3d at 80 (emphasis in
17 original)(internal quotation marks omitted). For the reasons
18 that follow, we conclude that substantial evidence supports the
19 agency’s determination that Patel was not credible.
20 The agency’s credibility determination is supported by
21 three affidavits submitted by Patel and signed by three
22 different affiants. They contain nearly identical language in
3
1 several paragraphs to describe, inter alia, Patel’s
2 participation in the Bharatiya Janata Party (“BJP”) and the
3 National Congress Party’s (“NCP”) mistreatment of him. These
4 substantial similarities cast doubt on the credibility of the
5 affidavits and thus on Patel’s own credibility. Singh v. BIA,
6 438 F.3d 145, 148 (2d Cir. 2006) (upholding adverse credibility
7 determination based in part on “nearly identical language” in
8 affidavits); Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007)
9 (“[A] single false document or a single instance of false
10 testimony may (if attributable to petitioner) infect the
11 balance of the alien’s uncorroborated or unauthenticated
12 evidence.”). Patel argues that the similarities should not be
13 held against him because the affidavits were likely prepared
14 by the same interpreter at the same time and only immaterial
15 topics were described with similar language. These arguments
16 are not compelling. Nothing suggests that the affidavits were
17 prepared by an interpreter and even if they were, it does not
18 explain how the affiants would have used the same words and
19 described events in the same order. See Majidi, 430 F.3d at20 80-81. And the materiality of the specific paragraphs is
21 irrelevant because the fact of the identical language calls into
22 question whether they are based on personal knowledge, and is
4
1 therefore sufficient to undermine Patel’s credibility. See
2 Siewe, 480 F.3d at 170.
3 The adverse credibility ruling is further supported by the
4 discrepancy between Patel’s testimony that he could not return
5 to India because the NCP won the most recent election in his
6 locality and the Government’s evidence that the BJP won that
7 election. Patel explained to the IJ that he misunderstood
8 which locality the BJP had won. He now offers a different
9 explanation, contending that he received inaccurate
10 information about the election results from his friends in the
11 United States; however, this explanation was never presented
12 to the IJ and, therefore, could not have compelled the IJ to
13 credit Patel’s testimony. See Majidi, 430 F.3d at 80. Nor is
14 it compelling because the Government’s evidence was publicly
15 available and, contrary to Patel’s explanation, his submission
16 of affidavits that post-date the election show that he was, in
17 fact, in contact with people in India.
18 Finally, the adverse credibility ruling is also supported
19 by the discrepancy between Patel’s written application and his
20 testimony that he never contacted the police about incidents
21 at an annual Hindu festival. Patel argues that, contrary to
22 the IJ’s finding, he testified that he contacted the police;
5
1 however, he relies on testimony about different incidents to
2 support his challenge. See id.3 Given the inconsistencies and the similarity of the
4 affidavits, the totality of the circumstances supports the
5 adverse credibility determination: a reasonable adjudicator
6 would not be compelled to conclude otherwise. See 8 U.S.C.
7 § 1158(b)(1)(B); Xiu Xia Lin, 534 F.3d at 165-67. The
8 credibility finding is dispositive of asylum, withholding of
9 removal, and CAT relief because Patel’s claims are all based
10 on the same factual predicate. See Paul v. Gonzales, 444 F.3d
11 148, 156-57 (2d Cir. 2006).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of removal
14 that the Court previously granted in this petition is VACATED,
15 and any pending motion for a stay of removal in this petition
16 is DISMISSED as moot. Any pending request for oral argument
17 in this petition is DENIED in accordance with Federal Rule of
18 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
19 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
6