Chhetri v. Garland ( 2023 )

20-2426
Chhetri v. Garland
BIA
Ruehle, IJ
A209 161 082
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 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 10th day of March, two thousand twenty-
5 three.
6
7 PRESENT:
8 REENA RAGGI,
9 RICHARD J. SULLIVAN,
10 WILLIAM J. NARDINI,
11 Circuit Judges.
12 _____________________________________
13
14 MEGH BAHADUR CHHETRI,
15 Petitioner,
16
17 v. 20-2426
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Khagendra Gharti-Chhetry, New
25 York, NY.
26
27 FOR RESPONDENT: Brian Boynton, Acting Assistant
28 Attorney General; Anthony P.
1 Nicastro, Assistant Director;
2 Patricia E. Bruckner, Trial
3 Attorney, Office of Immigration
4 Litigation, United States
5 Department of Justice, Washington,
6 DC.
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Megh Bahadur Chhetri, a native and citizen of
12 Nepal, seeks review of a July 1, 2020, decision of the BIA
13 affirming a June 4, 2018, decision of an Immigration Judge
14 (“IJ”) denying his application for asylum, withholding of
15 removal, and relief under the Convention Against Torture
16 (“CAT”). In re Megh Bahadur Chhetri, No. A 209 161 082 (BIA
17 July 1, 2020), aff’g No. A 209 161 082 (Immigr. Ct. Buffalo
18 June 4, 2018). We assume the parties’ familiarity with the
19 underlying facts and procedural history.
20 We review the IJ’s decision as the final agency
21 determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146
22 (2d Cir. 2008). We review adverse credibility determinations
23 for substantial evidence, see Hong Fei Gao v. Sessions, 891
24 F.3d 67, 76 (2d Cir. 2018), and “the administrative findings
2
1 of fact are conclusive unless any reasonable adjudicator
2 would be compelled to conclude to the contrary,” 8 U.S.C.
3 § 1252(b)(4)(B). “Considering the totality of the
4 circumstances, and all relevant factors, a trier of fact may
5 base a credibility determination on the demeanor, candor, or
6 responsiveness of the applicant . . . , the inherent
7 plausibility of the applicant’s . . . account, the consistency
8 between the applicant’s . . . written and oral
9 statements . . . , the internal consistency of each such
10 statement, the consistency of such statements with other
11 evidence of record . . . , and any inaccuracies or falsehoods
12 in such statements, without regard to whether an
13 inconsistency, inaccuracy, or falsehood goes to the heart of
14 the applicant’s claim, or any other relevant factor.”
15 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
16 credibility determination unless, from the totality of the
17 circumstances, it is plain that no reasonable fact-finder
18 could make such an adverse credibility ruling.” Xiu Xia Lin
19 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).
20 Substantial evidence supports the adverse credibility
21 determination. Chhetri alleged past persecution and a fear
3
1 of future persecution from members of the Maoist Party on
2 account of his support for the Nepali Congress Party (“NCP”).
3 The IJ reasonably relied on inconsistencies regarding whether
4 he was threatened by Maoists between 2009 and 2016 and whether
5 he received training before joining the NCP. See 8 U.S.C.
6 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. The IJ
7 reasonably rejected his explanation that the period between
8 2009 and 2016 was a time of peace because it did not resolve
9 the inconsistency and contradicted his statement that he had
10 been threatened during that period. See Majidi v. Gonzales,
11 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more
12 than offer a plausible explanation for his inconsistent
13 statements to secure relief; he must demonstrate that a
14 reasonable fact-finder would be compelled to credit his
15 testimony.” (internal quotation marks omitted)).
16 The IJ also reasonably concluded that Chhetri’s
17 credibility was undermined by the vagueness of his testimony
18 about the injuries his wife allegedly sustained when Maoists
19 assaulted her after Chhetri left Nepal. See Jin Shui Qiu v.
20 Ashcroft, 329 F.3d 140, 152 (2d Cir. 2003) (“Where an
21 applicant gives very spare testimony . . . the IJ . . . may
4
1 fairly wonder whether the testimony is fabricated.”),
2 overruled on other grounds by Shi Liang Lin v. U.S. Dep’t of
3 Just., 494 F.3d 296, 305 (2d Cir. 2007). Chhetri testified
4 that his wife was assaulted by a group of Maoists in January
5 2017 and was treated at a hospital for her injuries. However,
6 he could not describe her injuries despite testifying that he
7 spoke with his wife frequently, and the medical records he
8 submitted did not confirm an assault or injuries typical to
9 an assault. It was therefore reasonable for the IJ to take
10 issue with the vagueness of Chhetri’s testimony, especially
11 because Chhetri relied on the incident to show that the
12 Maoists were still looking for him. See Siewe v. Gonzales,
13 480 F.3d 160, 168-69 (2d Cir. 2007) (“The speculation that
14 inheres in inference is not ‘bald’ if the inference is made
15 available to the factfinder by record facts, or even a single
16 fact, viewed in the light of common sense and ordinary
17 experience.”).
18 Additionally, the IJ reasonably concluded that Chhetri’s
19 failure to produce corroborating evidence further undermined
20 his credibility. See Biao Yang v. Gonzales, 496 F.3d 268,
21 273 (2d Cir. 2007) (“An applicant’s failure to corroborate
5
1 his or her testimony may bear on credibility, because the
2 absence of corroboration in general makes an applicant unable
3 to rehabilitate testimony that has already been called into
4 question.”). Chhetri alleged that he and his wife reported
5 the Maoist violence to the police, but he did not provide any
6 police reports or supporting letters from relatives, NCP
7 members, villagers, or others who had been beaten by Maoists,
8 nor did he indicate that he had tried to obtain these
9 documents. Moreover, while country conditions evidence
10 reflected some political violence, it reported reduced
11 violence and did not reflect incidents similar to those
12 Chhetri alleged. Cf. Diallo v. INS, 232 F.3d 279, 288 (2d
13 Cir. 2000) (indicating that individualized corroboration of
14 credible testimony may not be required where country
15 conditions evidence reflects that applicant’s personal
16 “experiences closely parallel[] the patterns of persecution”
17 in the country of removal).
18 The inconsistencies, vague testimony, and absence of
19 corroboration provide substantial evidence for the IJ’s
20 decision. See Xiu Xia Lin, 534 F.3d at 167. The adverse
21 credibility determination is dispositive of asylum,
6
1 withholding of removal, and CAT relief because all three
2 claims are based on the same factual predicate. See Paul v.
3 Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).
4 For the foregoing reasons, the petition for review is
5 DENIED. All pending motions and applications are DENIED and
6 stays VACATED.
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe,
9 Clerk of Court
7