Gurung v. Holder ( 2014 )

12-1123
Gurung v. Holder
BIA
Vomacka, IJ
A087 797 714
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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 29th day of April, two thousand fourteen.
PRESENT:
PIERRE N. LEVAL,
REENA RAGGI,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
SOM BAHADUR GURUNG,
Petitioner,
v. 12-1123
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Julie Mullaney, Mount Kisco, NY.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Jennifer P.
Levings, Senior Litigation Counsel;
Carmel A. Morgan, Trial Attorney;
John G. Rafter, Law Clerk; Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
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.
Som Bahadur Gurung, a native and citizen of Nepal,
seeks review of a March 5, 2012, decision of the BIA
(1) affirming the July 28, 2010, decision of Immigration
Judge (“IJ”) Alan A. Vomacka, which denied his application
for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”); and (2) denying his
motion to reopen and remand. In re Som Bahadur Gurung, No.
A087 797 714 (B.I.A. Mar. 5, 2012), aff’g No. A087 797 714
(Immig. Ct. N.Y. City July 28, 2010). We assume the
parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as supplemented by the BIA. See Yan Chen
v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
applicable standards of review are well-established. See
8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
510, 513 (2d Cir. 2009); Li Yong Cao v. U.S. Dep't of
Justice, 421 F.3d 149, 156 (2d Cir. 2005). As an initial
matter, we are without jurisdiction to consider Gurung’s
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challenge to the denial of withholding of removal and CAT
relief, as he failed to exhaust these claims before the BIA.
See 8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113,
119 (2d Cir. 2006).
I. Adverse Credibility Determination
For applications such as Gurung’s, governed by the REAL
ID Act of 2005, the agency may, considering the totality of
the circumstances, base a credibility finding on an asylum
applicant’s “demeanor, candor, or responsiveness,” the
plausibility of his account, and inconsistencies in his
statements, without regard to whether they go “to the heart
of the applicant’s claim,” so long as they reasonably
support an inference that the applicant is not credible. 8
U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); see Xiu Xia Lin
v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). An omission
in the applicant’s testimony or supporting documents can
also “serve as a proper basis for an adverse credibility
determination.” Xiu Xia Lin, 534 F.3d at 166 n.3. We
“defer [ ] to an IJ’s credibility determination unless, from
the totality of the circumstances, it is plain that no
reasonable fact-finder could make such an adverse
credibility ruling.” Id. at 167.
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In this case, the agency reasonably based its adverse
credibility determination on Gurung’s initial omission from
his testimony of an incident in 2001 when Maoists attacked
Gurung in his home, and inconsistencies between his
statement and his testimony regarding his encounter with
Maoists in the forest in 2006. In both his appeal to the
BIA and before this Court, Gurung merely states that the
discrepancies are minor, without any further explanation or
discussion. The IJ, however, reasonably found the
discrepancies to be material—and indicative that Gurung was
not credible. Absent further explanation as to why a
reasonable fact-finder would be compelled to conclude
otherwise or to credit his testimony, Gurung fails to
overcome the degree of deference we afford to an IJ’s
credibility findings. See Majidi v. Gonzales, 430 F.3d 77,
80-81 (2d Cir. 2005).
Moreover, the agency reasonably gave limited weight to
Gurung’s corroborating evidence, including letters from the
village development committee, the Maoists Victim
Association, and the police, because the letters were
written in August or September 2009 rather than
contemporaneous to the events they described. See Qin Wen
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Zheng v. Gonzales, 500 F.3d 143, 146-49 (2d Cir. 2007); Xiao
Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.
2006). Given the omission, discrepancies, and lack of
credible corroboration, the totality of the circumstances
supports the agency’s adverse credibility determination.
See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at
167.
II. Motion to Remand
The BIA’s denial of a motion to remand is held to the
same substantive standard of review for motions to reopen
and to reconsider. Li Yong Cao, 421 F.3d at 156. “The BIA
has ‘broad discretion’ to deny a motion to remand grounded
on new evidence,” and accordingly, we review the BIA’s
denial of such a motion for abuse of discretion. Id. at
156-57 (quoting INS v. Doherty, 502 U.S. 314, 323 (1992)).
The BIA may deny motions to remand when a prima facie case
for the relief sought is not established. Id. at 156. To
establish a prima facie case, a petitioner has “the heavy
burden of demonstrating . . . proffered new evidence [that]
would likely alter the result in [his] case” and to “show a
realistic chance” of obtaining relief upon reopening. See
Jian Hui Shao v. Mukasey, 546 F.3d 138, 168 (2d Cir. 2008)
(internal quotation marks omitted).
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In this case, Gurung submitted an August 2010 letter
from his village’s development office stating that Gurung
had been threatened and attacked by Maoists, and his life
remained in danger. Neither his motion to the BIA nor his
brief to this Court explains either why this letter was
previously unavailable, or how it affects the IJ’s adverse
credibility determination and establishes his prima facie
eligibility for asylum. Moreover, the letter is very
similar to a letter from the same village development
committee, dated August 2009, that Gurung submitted as
evidence in his initial proceedings before the IJ.
Accordingly, the BIA did not abuse its discretion in denying
Gurung’s motion to remand. See Li Yong Cao, 421 F.3d at
156.
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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