Suraj v. Garland ( 2022 )

20-1645
Suraj v. Garland
BIA
Poczter, IJ
A208 925 459
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.
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 18th day of July, two thousand twenty-two.
PRESENT:
JON O. NEWMAN,
JOSÉ A. CABRANES,
STEVEN J. MENASHI,
Circuit Judges.
_____________________________________
G.C. SURAJ,
Petitioner,
v. 20-1645
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Khagendra Gharti-Chhetry, Esq.,
New York, NY.
FOR RESPONDENT: Bryan Boynton, Acting Assistant
Attorney General; Justin Markel,
Senior Litigation Counsel, Nancy
E. Friedman, Senior Litigation
Counsel, 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 G.C. Suraj, a native and citizen of Nepal,
seeks review of a May 11, 2020, decision of the BIA affirming
a July 2, 2018, decision of an Immigration Judge (“IJ”)
denying asylum, withholding of removal, and protection under
the Convention Against Torture (“CAT”). In re G.C. Suraj,
No. A208 925 459 (B.I.A. May 11, 2020), aff’g No. A208 925
459 (Immig. Ct. N.Y. City July 2, 2018). We assume the
parties’ familiarity with the underlying facts and procedural
history.
We have considered both the IJ’s and the BIA’s opinions
“for the sake of completeness.” Wangchuck v. Dep’t of
Homeland Security, 448 F.3d 524, 528 (2d Cir. 2006). The
applicable standards of review are well established. See 8
U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings of
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fact are conclusive unless any reasonable adjudicator would
be compelled to conclude to the contrary.”). “[W]e review the
agency’s decision for substantial evidence and must defer to
the factfinder’s findings based on such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion.” Singh v. Garland, 11 F.4th 106, 113 (2d Cir.
2021) (internal quotation marks omitted); Hong Fei Gao v.
Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing adverse
credibility determination for substantial evidence).
“Considering the totality of the circumstances, and all
relevant factors, a trier of fact may base a credibility
determination on . . . the consistency between the applicant’s
or witness’s written and oral statements (whenever made and
whether or not under oath, and considering the circumstances
under which the statements were made), the internal
consistency of each such statement, the consistency of such
statements with other evidence of record . . . without regard
to whether an inconsistency, inaccuracy, or falsehood goes to
the heart of the applicant’s claim, or any other relevant
factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to
an IJ’s credibility determination unless, from the totality
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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.
Substantial evidence supports the adverse credibility
determination given inconsistencies between Suraj’s testimony
and affidavits he submitted in support of his application.
See 8 U.S.C. § 1158(b)(1)(B)(iii). First, Suraj testified
that Maoists assaulted him because he supported the Nepali
Congress Party (“NCP”) and refused to give the Maoists a
donation. He explicitly stated that he was afraid to seek
medical treatment following this attack and that his neighbor
came to his home but did not take him to the hospital. In
contrast, that neighbor wrote that he and other neighbors
took Suraj to the hospital where he stayed for two days. The
agency was not required to credit Suraj’s explanation that
his father helped prepare the neighbor’s affidavit and may
have made a mistake because Suraj submitted the document
despite the alleged error. See Majidi v. Gonzales, 430 F.3d
77, 80 (2d Cir. 2005) (“A petitioner must do more than offer
a plausible explanation for his inconsistent statements to
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secure relief; he must demonstrate that a reasonable fact-
finder would be compelled to credit his testimony.”
(quotation marks omitted)).
Second, the agency reasonably relied on inconsistencies
between Suraj’s testimony and affidavits regarding the number
of attacks. See 8 U.S.C. § 1158(b)(1)(B)(iii). The
affidavits from Suraj’s father, his neighbor, and the NCP
reported that Maoists attacked Suraj on two occasions, but
Suraj testified to only one attack. On the day of his
hearing, Suraj submitted an email in which his father admitted
fabricating the second attack and telling the neighbor and
the NCP to report two attacks, and he argues here that the
agency should not have relied on third party embellishments
in making an adverse credibility determination. To the
contrary, the agency reasonably concluded that the false
affidavits undermined Suraj’s credibility. See Rui Ying Lin
v. Gonzales, 445 F.3d 127, 133 (2d Cir. 2006) (“[The agency]
may be justified . . . in concluding that a falsified
document that goes to the heart of an applicant’s claim for
asylum, if submitted as evidence in an asylum proceeding,
calls into question the authenticity of other documents
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submitted in support of that application.”). The agency was
not required to credit Suraj’s explanation that his father
was confused about what to write because he was receiving
threats, particularly as confusion would not explain why he
created a second attack or directed others to repeat that
false information. See Majidi, 430 F.3d at 80.
Finally, Suraj’s testimony and written statement were
inconsistent about whether he received threats from Maoists
in the two years after he relocated to Kathmandu. See 8 U.S.C.
§ 1158(b)(1)(B)(iii). Suraj testified that he was threatened
once while walking in Kathmandu, but on cross-examination he
said he received many threatening telephone calls. He did
not mention these telephonic threats in his written
statement. The agency reasonably relied on the inconsistency
in his testimony and omission from his application. See Hong
Fei Gao, 891 F.3d at 78–79 (“In assessing the probative value
of the omission of certain facts, [the agency] should consider
whether those facts are ones that a credible petitioner would
reasonably have been expected to disclose under the relevant
circumstances.”).
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Given the multiple inconsistencies, substantial evidence
supports the adverse credibility determination. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Likai Gao v. Barr, 968 F.3d 137, 145
n.8 (2d Cir. 2020) (“[E]ven a single inconsistency might
preclude an alien from showing that an IJ was compelled to
find him credible. Multiple inconsistencies would so preclude
even more forcefully.”). The adverse credibility
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. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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