Kumar v. Lynch , 674 F. App'x 79 ( 2017 )

15-1471
Kumar v. Lynch
BIA
Balasquide, IJ
A087 916 784
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 9th day of January, two thousand seventeen.
5
6 PRESENT:
7 RALPH K. WINTER,
8 PETER W. HALL,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 GOLDEN KUMAR,
14 Petitioner,
15
16 v. 15-1471
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Maleeha Haq, New York, NY.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Attorney General; Shelley R. Goad,
27 Assistant Director; Russell J.E.
28 Verby, Senior Litigation Counsel,
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 Golden Kumar, a native and citizen of India,
6 seeks review of an April 7, 2015, decision of the BIA affirming
7 a June 27, 2013, decision of an Immigration Judge (“IJ”) denying
8 Kumar’s application for asylum, withholding of removal, and
9 relief under the Convention Against Torture (“CAT”). In re
10 Golden Kumar, No. A087 916 784 (B.I.A. Apr. 7, 2015), aff’g No.
11 A087 916 784 (Immig. Ct. N.Y. City June 27, 2013). We assume
12 the parties’ familiarity with the underlying facts and
13 procedural history in this case.
14 We have reviewed both the IJ’s and the BIA’s opinions.
15 Yun-Zui Guan v. Gonzales, 432 F.3d 391, 395 (2d Cir. 2005).
16 The applicable standards of review are well established. See
17 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
18 513 (2d Cir. 2009).
19 Under the REAL ID Act of 2005, the agency may, in light of
20 “the totality of the circumstances,” base an adverse
21 credibility determination on an applicant’s “demeanor, candor,
22 or responsiveness,” the plausibility of his account, and
2
1 inconsistencies in his statements, “without regard to whether”
2 those inconsistencies go “to the heart of the applicant’s
3 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey,
4 534 F.3d 162, 165 (2d Cir. 2008). Under the “substantial
5 evidence” standard of review, “we defer . . . to an IJ’s
6 credibility determination unless, from the totality of the
7 circumstances, it is plain that no reasonable fact-finder could
8 make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d
9 at 167.
10 The adverse credibility determination against Kumar is
11 sound. Kumar claimed that in January 2009, he and his wife were
12 kidnapped by members of the radical Dera Sacha Sauda sect, and
13 that his wife, then five months pregnant, was beaten and raped,
14 causing her to miscarry.
15 In finding Kumar’s testimony not credible, the IJ relied
16 on Kumar’s failure to mention his wife’s rape during a credible
17 fear interview. We have warned that a credible fear interview
18 warrants “close examination” because it may “be perceived as
19 coercive” or fail to “elicit all of the details supporting an
20 asylum claim.” Ming Zhang v. Holder, 585 F.3d 715, 724-25 (2d
21 Cir. 2009). Nevertheless, “[w]here the record of a credible
22 fear interview displays the hallmarks of reliability, it
3
1 appropriately can be considered in assessing an alien’s
2 credibility.” Id. at 725. Some of those hallmarks are that
3 the interview was memorialized in a typewritten document, was
4 conducted through an interpreter, and asked questions designed
5 to elicit a possible asylum claim. Id. at 275 (citing
6 Ramsameachire v. Ashcroft, 357 F.3d 169, 180 (2d Cir. 2004)).
7 Those hallmarks were present here: the interviewer asked Kumar
8 about his past harm and future fears, and the interview was
9 conducted with an interpreter and memorialized in a typewritten
10 document. As the IJ noted, Kumar told the immigration official
11 that his pregnant wife was detained and beaten, causing a
12 miscarriage, but unlike at the merits hearing, did not report
13 that she was raped. While we have observed “that, in some
14 cases, insignificant details about an applicant’s claim might
15 not be mentioned during a credible fear interview,” Ming Zhang,
16 585 F.3d at 725 (emphasis added), the rape of Kumar’s wife was
17 not an “insignificant detail” of his claim.
18 Kumar argues that the agency failed to conduct the required
19 assessment of the interview’s reliability. But we have advised
20 that the BIA “need not engage in ‘robotic incantations’ or make
21 any talismanic references to ‘close examination’ or ‘special
22 scrutiny.’” Id.; cf. Yun-Zui Guan v. Gonzales, 432 F.3d 391,
4
1 396 (2d Cir. 2005) (“[W]e do not regard these factors as
2 essential to be assessed in every case, but simply as helpful
3 matters to be considered where appropriate.”).
4 Kumar conducts his own assessment and attacks the credible
5 fear interview as unreliable on four fronts. First, he argues
6 that it appears to paraphrase (rather than record) his answers.
7 But the record need not be a “verbatim account” of the
8 interview--it need only set forth the questions asked and the
9 answers given. Ming Zhang, 585 F.3d at 725. Second, he notes
10 that the interviewer never asked about harm to his wife. That
11 is true; however, Kumar volunteered that his wife was beaten
12 to the point of a miscarriage. It strains credulity to suggest
13 that the official was obligated to ask a follow-up question
14 about what harm--beyond a miscarriage--Kumar’s wife suffered.
15 Third, Kumar posits that he may have omitted details due to fear
16 of returning to India. Kumar did not testify to that effect
17 at his hearing, and an “attorney’s unsworn statements in a brief
18 are not evidence,” Kulhawik v. Holder, 571 F.3d 296, 298 (2d
19 Cir. 2009). In any event, even if Kumar had offered that
20 explanation, the agency would not have been compelled to credit
21 it. See Ming Zhang, 585 F.3d at 725 (“We again reject the notion
22 that a petitioner’s claim that she was nervous and distracted
5
1 during the credible fear interview automatically undermines or
2 negates its reliability as a source of her statements.”).
3 Fourth, Kumar argues that interpretation issues erode the
4 reliability of the credible fear interview. The interview
5 record does note that the interviewer’s voice became hard to
6 hear at times, but Kumar did not raise any problems
7 understanding during the interview. When confronted with his
8 failure to mention the rape, Kumar first responded that the
9 immigration official did not ask detailed questions, but then
10 said he did mention the rape and posited that the interviewer
11 failed to record that statement. The agency was not compelled
12 to credit these conflicting explanations. Majidi v. Gonzales,
13 430 F.3d 77, 80 (2d Cir. 2005) (explaining that the agency is
14 not required to credit an explanation that is merely plausible
15 or possible).
16 The agency reasonably relied on two other inconsistencies
17 between Kumar’s testimony and documentary evidence. The first
18 was with respect to his wife’s pregnancy during the attack: he
19 testified that she was five months pregnant, but her letter said
20 three months. At the merits hearing, Kumar offered three
21 explanations for this discrepancy: he did not know the details
22 of her pregnancy, they were under too much stress to learn those
6
1 details, and Indian wives are shy about pregnancy. Contrary
2 to Kumar’s arguments here, the IJ acknowledged that Kumar
3 offered various explanations, and elected, quite reasonably,
4 to reject them. Majidi, 430 F.3d at 80.
5 The second inconsistency concerned when Kumar and his wife
6 received medical treatment after the kidnapping. Kumar
7 testified that his wife was released after two or three days
8 and was taken to the hospital immediately, and that he was
9 released about two weeks later, on January 15. But documents
10 from the couple’s physician reflected that both Kumar and his
11 wife were treated on January 15. When confronted with this
12 inconsistency, Kumar explained that the doctor did not remember
13 when he treated them and that the doctor did not “want to be
14 involved in any kind of legal headaches.” Contrary to Kumar’s
15 arguments, the IJ did consider these explanations, but was not
16 compelled to accept them, Majidi, 430 F.3d at 80. Nor was the
17 agency obligated to deem the doctor’s letter “unreliable as
18 documentary evidence.” “We generally defer to the agency's
19 determination of the weight afforded to an alien’s documentary
20 evidence.” Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013).
21 Here, the agency was within its discretion to find that Kumar’s
7
1 documentary evidence impeached, rather than bolstered, his
2 testimony.
3 Given the inconsistencies that cast doubt on whether Kumar
4 and his wife suffered a critical incident of alleged
5 persecution, the totality of the circumstances supports the
6 agency’s adverse credibility determination. Kumar’s
7 applications for asylum, withholding of removal, and CAT relief
8 were based on the same factual predicate, and so the adverse
9 credibility determination was dispositive as to all three. See
10 Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of removal
13 that the Court previously granted in this petition is VACATED,
14 and any pending motion for a stay of removal in this petition
15 is DISMISSED as moot. Any pending request for oral argument
16 in this petition is DENIED in accordance with Federal Rule of
17 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
18 34.1(b).
19 FOR THE COURT:
20 Catherine O=Hagan Wolfe, Clerk
8