Chhetri v. Garland ( 2022 )

20-3442
Chhetri v. Garland
BIA
Schoppert, IJ
A202 088 106
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
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 17th day of June, two thousand twenty-two.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 RAYMOND J. LOHIER, JR.,
9 STEVEN J. MENASHI,
10 Circuit Judges.
11 _____________________________________
12
13 DIL BAHADUR CHHETRI,
14 Petitioner,
15
16 v. 20-3442
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Dilli Raj Bhatta, Esq., Bhatta
24 Law & Associates, New York, NY.
25
26 FOR RESPONDENT: Brian Boynton, Acting Assistant
27 Attorney General; Brianne Whelan
28 Cohen, Senior Litigation Counsel;
1 Christina R. Zeidan, Trial
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 Dil Bahadur Chhetri, a native and citizen of
11 Nepal, seeks review of a September 14, 2020 decision of the
12 BIA affirming an August 21, 2018 decision of an Immigration
13 Judge (“IJ”) denying asylum, withholding of removal, and
14 protection under the Convention Against Torture (“CAT”). In
15 re Dil Bahadur Chhetri, No. A 202 088 106 (B.I.A. Sept. 14,
16 2020), aff’g No. A 202 088 106 (Immig. Ct. N.Y. City Aug. 21,
17 2018). We assume the parties’ familiarity with the
18 underlying facts and procedural history.
19 We have considered both the IJ’s and the BIA’s opinions
20 “for the sake of completeness.” Wangchuck v. Dep’t of
21 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review
22 the agency’s adverse credibility determination for
23 substantial evidence, see Hong Fei Gao v. Sessions, 891 F.3d
24 67, 76 (2d Cir. 2018), and treat the agency’s findings of
2
1 fact as “conclusive unless any reasonable adjudicator would
2 be compelled to conclude to the contrary,” 8 U.S.C.
3 § 1252(b)(4)(B). “The scope of review under the substantial
4 evidence standard is exceedingly narrow, and we will uphold
5 the BIA’s decision unless the petitioner demonstrates that
6 the record evidence was so compelling that no reasonable
7 factfinder could fail to find him eligible for relief.”
8 Singh v. Garland, 11 F.4th 106, 113 (2d Cir. 2021) (internal
9 quotation marks omitted).
10 The agency denied relief on the basis of an adverse
11 credibility determination. “Considering the totality of the
12 circumstances, and all relevant factors, a trier of fact may
13 base a credibility determination on the demeanor, candor, or
14 responsiveness of the applicant . . ., the inherent
15 plausibility of the applicant’s . . . account, the
16 consistency between the applicant’s . . . written and oral
17 statements . . ., the internal consistency of each such
18 statement, the consistency of such statements with other
19 evidence of record . . ., and any inaccuracies or falsehoods
20 in such statements, without regard to whether an
21 inconsistency, inaccuracy, or falsehood goes to the heart of
3
1 the applicant’s claim, or any other relevant factor.” 8
2 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
3 credibility determination unless, from the totality of the
4 circumstances, it is plain that no reasonable fact-finder
5 could make such an adverse credibility ruling.” Xiu Xia Lin
6 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei
7 Gao, 891 F.3d at 76.
8 In this case, substantial evidence supports the adverse
9 credibility determination. Chhetri alleged that he was
10 attacked by Maoists because of his support for the Nepali
11 Congress Party. The agency reasonably relied on
12 inconsistencies within and between Chhetri’s statements and
13 explanations for the motivation and timing of the attacks.
14 For example, he alleged attacks in 2013 because the Maoists
15 were angry about election losses, but he identified some of
16 the attacks as occurring before the election. When asked to
17 explain, he introduced an additional inconsistency, first
18 alleging that the attacks were prompted by losses in the 2008
19 election and then alleging that he had been in hiding to
20 explain the lag between the 2008 election and the 2013
21 attacks. The agency was not required to accept this
4
1 explanation because it added a further inconsistency and was
2 uncorroborated. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d
3 Cir. 2005) (“A petitioner must do more than offer a plausible
4 explanation for his inconsistent statements to secure relief;
5 he must demonstrate that a reasonable fact-finder would be
6 compelled to credit his testimony.” (internal quotation marks
7 omitted)).
8 The agency also reasonably concluded that Chhetri failed
9 to produce reliable corroboration. An applicant’s testimony
10 may be sufficient without corroboration, “but only if the
11 applicant satisfies the trier of fact that the applicant’s
12 testimony is credible . . . [and] persuasive.” 8 U.S.C.
13 § 1158(b)(B)(ii). “In determining whether the applicant has
14 met the applicant’s burden, the trier of fact may weigh the
15 credible testimony along with other evidence of record.” Id.
16 The agency did not err in declining to credit affidavits with
17 identical language. See Mei Chai Ye v. U.S. Dep’t of Justice,
18 489 F.3d 517, 524 (2d Cir. 2007) (“[O]ur case law on intra-
19 proceeding similarities has firmly embraced the
20 commonsensical notion that striking similarities between
21 affidavits are an indication that the statements are
5
1 ‘canned.’”); Singh v. BIA, 438 F.3d 145, 148 (2d Cir. 2006).
2 Given the inconsistencies about the attacks, Chhetri’s
3 late and unsupported allegation that he had been in hiding,
4 and the similarity of the supporting affidavits, substantial
5 evidence supports the agency’s adverse credibility
6 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
7 Lin, 534 F.3d at 167–68; see also Likai Gao v. Barr, 968 F.3d
8 137, 145 n.8 (2d Cir. 2020) (“[E]ven a single inconsistency
9 might preclude an alien from showing that an IJ was compelled
10 to find him credible. Multiple inconsistencies would so
11 preclude even more forcefully.”). That determination is
12 dispositive of asylum, withholding of removal, and CAT relief
13 because all three claims were based on the same factual
14 predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d
15 Cir. 2006).
16 For the foregoing reasons, the petition for review is
17 DENIED. All pending motions and applications are DENIED and
18 stays VACATED.
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe,
21 Clerk of Court
6