Malla v. Garland ( 2022 )

20-2597
Malla v. Garland
BIA
Laforest, IJ
A205 030 951
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 4th day of August, two thousand twenty-two.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 RICHARD J. SULLIVAN,
9 BETH ROBINSON,
10 Circuit Judges.
11 _____________________________________
12
13 SONU MALLA,
14 Petitioner,
15
16 v. 20-2597
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Khagendra Gharti-Chhetry, New
24 York, NY.
25
26 FOR RESPONDENT: Brian Boynton, Acting Assistant
27 Attorney General; Julie M.
28 Iversen, Senior Litigation
1 Counsel; Kathryn M. McKinney,
2 Attorney, Office of Immigration
3 Litigation, United States
4 Department of Justice, Washington,
5 DC.
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Sonu Malla, a native and citizen of Nepal,
11 seeks review of a July 7, 2020, decision of the BIA affirming
12 a May 3, 2018, decision of an Immigration Judge (“IJ”) denying
13 her application for asylum, withholding of removal, and
14 relief under the Convention Against Torture (“CAT”). In re
15 Sonu Malla, No. A 205 030 951 (B.I.A. July 7, 2020), aff’g
16 No. A 205 030 951 (Immig. Ct. N.Y. City May 3, 2018). We
17 assume the parties’ familiarity with the underlying facts and
18 procedural history.
19 In lieu of filing a responsive brief, the Government
20 moves for summary denial. A summary ruling without “full
21 merits briefing . . . is, and should be treated as, a rare
22 exception to the completion of the appeal process . . . .
23 that is available only if an appeal is truly frivolous.”
24 United States v. Davis, 598 F.3d 10, 13 (2d Cir. 2010)
2
1 (quotation marks omitted); see also Pillay v. INS, 45 F.3d
2 14, 16–17 (2d Cir. 1995). Nevertheless, because petitioner
3 has filed a brief on the merits in addition to an opposition
4 to the Government’s motion, we may construe the Government’s
5 motion as its brief and deny the petition on the merits rather
6 than determine if the petition is frivolous.
7 We have considered the IJ’s decision as modified by the
8 BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
9 520, 522 (2d Cir. 2005). We review adverse credibility
10 determinations for substantial evidence, see Hong Fei Gao v.
11 Sessions, 891 F.3d 67, 76 (2d Cir. 2018), and “the
12 administrative findings of fact are conclusive unless any
13 reasonable adjudicator would be compelled to conclude to the
14 contrary,” 8 U.S.C. § 1252(b)(4)(B). The IJ may,
15 “[c]onsidering the totality of the circumstances,” base a
16 credibility determination on inconsistencies in an
17 applicant’s statements or between her statements and other
18 evidence, “without regard to whether an inconsistency,
19 inaccuracy, or falsehood goes to the heart of the applicant’s
20 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). We “defer . . . to
21 an IJ’s [adverse] credibility determination unless, from the
3
1 totality of the circumstances, it is plain that no reasonable
2 fact-finder could make such an adverse credibility ruling.”
3 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008);
4 accord Hong Fei Gao, 891 F.3d at 76. Substantial evidence
5 supports the adverse credibility determination.
6 Malla alleged that Maoists threatened and assaulted her
7 because of her work for a Christian organization and her
8 political activities. The IJ reasonably relied on Malla’s
9 omission of material allegations from her original written
10 statement. See Xiu Xia Lin, 534 F.3d at 167 (holding that
11 agency may rely on inconsistencies or omissions). That
12 original statement did not mention (1) her membership in the
13 Nepali Student Union and the Nepali Congress Party (“NCP”),
14 (2) her persecution on account of her political activities,
15 or (3) an assault by Maoists. The IJ did not err in relying
16 on these omissions because Malla failed to mention the most
17 central aspects of her asylum claim, including the specific
18 political groups to which she allegedly belonged and the May
19 15, 2009 incident that constituted the most severe of her
20 allegations of past harm. See 8 U.S.C. § 1158(b)(1)(B)(ii);
21 Hong Fei Gao, 891 F.3d at 78 (explaining that the “probative
4
1 value of a witness’s prior silence on particular facts depends
2 on whether those facts are ones the witness would reasonably
3 have been expected to disclose”). The IJ was not required
4 to credit Malla’s explanation that she did not have an
5 attorney when she prepared the original application given the
6 materiality of the omissions. See Majidi v. Gonzales, 430
7 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more than
8 offer a plausible explanation for h[er] inconsistent
9 statements to secure relief; [s]he must demonstrate that a
10 reasonable fact-finder would be compelled to credit h[er]
11 testimony.” (quotation marks omitted)).
12 The IJ also reasonably relied on inconsistencies between
13 Malla’s testimony and a letter from an NCP official regarding
14 her family’s farmland. Malla testified that her family had
15 to sell the land to pay for her father’s medical treatments,
16 but a letter from the president of an NCP District Committee
17 stated that the Maoists had taken over the land. The record
18 contradicts Malla’s argument that she testified consistently
19 on this point: she initially testified that the family sold
20 the land to pay medical bills, and she did not mention that
21 Maoists took the land until she was asked to explain the
5
1 discrepancy between her testimony and the letter. The IJ was
2 not required to accept Malla’s explanation that the Maoists
3 took some land and her family sold some land given that her
4 asylum claim was based on a fear of Maoists. Id.5 Finally, the IJ did not err by giving diminished weight
6 to letters from Malla’s friend, husband, fellow volunteer,
7 and NCP officials because the authors were not subject to
8 cross-examination. See Y.C. v. Holder, 741 F.3d 324, 332–34
9 (2d Cir. 2013) (holding that “[w]e generally defer to the
10 agency’s evaluation of the weight to be afforded an
11 applicant’s documentary evidence” and upholding agency’s
12 decision not to credit a letter from the applicant’s spouse).
13 Moreover, these letters do not rehabilitate Malla’s claim
14 because the authors did not have personal knowledge of her
15 alleged harm, and the letter about the land seizure was
16 inconsistent with her testimony. See Biao Yang v. Gonzales,
17 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s failure to
18 corroborate his or her testimony may bear on credibility,
19 because the absence of corroboration in general makes an
20 applicant unable to rehabilitate testimony that has already
21 been called into question.”).
6
1 Given the inconsistencies, omissions, and lack of
2 reliable corroboration, the agency’s adverse credibility
3 determination is supported by substantial evidence. See Xiu
4 Xia Lin, 534 F.3d at 167; Biao Yang, 496 F.3d at 273. The
5 adverse credibility determination is dispositive of asylum,
6 withholding of removal, and CAT relief because all three
7 claims were based on the same factual predicate. See Paul
8 v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).
9 For the foregoing reasons, the petition for review is
10 DENIED. All pending motions and applications are DENIED and
11 stays VACATED.
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe,
14 Clerk of Court
7