Sharma v. Lynch

13-4777
Sharma v. Lynch
BIA
Christensen, IJ
A089 091 988
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 July, two thousand fifteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 DEBRA ANN LIVINGSTON,
10 SUSAN L. CARNEY,
11 Circuit Judges.
12 _____________________________________
13
14 BEDHANIDHI SHARMA, AKA
15 BEDRUIDI SHAZMA,
16 Petitioner,
17
18 v. 13-4777
19 NAC
20
21 LORETTA E. LYNCH, UNITED STATES
22 ATTORNEY GENERAL,
23 Respondent.
24 _____________________________________
25
26
27 FOR PETITIONER: Yagya P. Nepal, San Leandro,
28 CA.
29
1 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
2 Attorney General; Song Park, Senior
3 Litigation Counsel; Kimberly A.
4 Burdge, Trial Attorney, Office of
5 Immigration Litigation, United
6 States Department of Justice,
7 Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review is
12 DENIED.
13 Petitioner Bedhanidhi Sharma, a native and citizen of
14 Nepal, seeks review of a November 27, 2013, decision of the BIA
15 (1) affirming an April 5, 2011, decision of an Immigration Judge
16 (“IJ”) denying Sharma’s application for asylum, withholding of
17 removal, and relief under the Convention Against Torture
18 (“CAT”); and (2) denying his motion to remand. In re
19 Bedhanidhi Sharma, No. A089 091 988 (B.I.A. Nov. 27, 2013),
20 aff’g No. A089 091 988 (Immig. Ct. N.Y. City Apr. 5, 2011). We
21 assume the parties’ familiarity with the underlying facts and
22 procedural history in this case.
23 Under the circumstances of this case, we review the IJ’s
24 decision as supplemented by the BIA. See Yan Chen v. Gonzales,
25 417 F.3d 268, 271 (2d Cir. 2005). The applicable standards of
2
1 review are well established. See 8 U.S.C. § 1252(b)(4)(B); see
2 also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
3 Adverse Credibility Determination
4 For asylum applications such as Sharma’s, governed by the
5 REAL ID Act of 2005, the agency may, considering the totality
6 of the circumstances, base a credibility finding on an asylum
7 applicant’s “demeanor, candor, or responsiveness,” the
8 plausibility of his account, and inconsistencies in his
9 statements, so long as they reasonably support an inference that
10 the applicant is not credible. 8 U.S.C. § 1158(b)(1)(B)(iii);
11 see Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).
12 For purposes of a credibility determination, “[a]n
13 inconsistency and an omission are . . . functionally
14 equivalent.” Xiu Xia Lin, 534 F.3d at 166 n.3. We defer “to
15 an IJ’s credibility determination unless, from the totality of
16 the circumstances, it is plain that no reasonable fact-finder
17 could make such an adverse credibility ruling.” Id. at 167.
18 In this case, the agency reasonably based its adverse
19 credibility determination on omissions and inconsistencies.
20 Sharma’s testimony conflicted with his asylum application
21 on a key point: whether he fled to India before or after the
3
1 Maoists released his kidnaped wife. In his asylum application
2 he stated that he left India after the Maoists released his wife.
3 By contrast, he testified that while he was at a store, he
4 learned that the Maoists were at his home and immediately left
5 Nepal, learning that the Maoists kidnaped his wife only after
6 he arrived in India. Letters from Sharma’s wife and father
7 state that Sharma went to India after his wife was released.
8 Sharma’s testimony and asylum application conflicted with
9 the record of his credible fear interview with respect to his
10 party affiliation. At his merits hearing and in his asylum
11 application, Sharma averred that: beginning in 1986, he was
12 active with the Nepali Student Union, the student affiliate of
13 the Nepali Congress Party (“NCP”); he remained a member of the
14 NCP for more than 20 years; and it was his affiliation with the
15 NCP that triggered Maoist attacks. He did not mention the NCP
16 at all in his credible fear interview. Similarly, in both his
17 testimony and asylum application he said he joined the
18 Rasertriya Prajantranea Party (“RPP”); at the credible fear
19 interview he said he was simply a supporter.
20 Contrary to Sharma’s argument, the IJ reasonably relied on
21 the credible fear interview to form the basis of the adverse
4
1 credibility determination. When discrepancies arise from an
2 applicant’s statements in a credible fear interview, we closely
3 examine the record of the interview to ensure that it is
4 sufficiently accurate to merit consideration in determining
5 whether the applicant is credible. Ming Zhang v. Holder, 585
6 F.3d 715, 723-25 (2d Cir. 2009). Sharma argues only that “the
7 asylum officer did not ask [him] questions which would elicit
8 the details of his membership in the [NCP]” and did not ask
9 follow-up questions to develop his account. However, the IJ
10 based the adverse credibility determination not on a difference
11 in details between the credible fear interview and Sharma’s
12 asylum statement, but rather on Sharma’s complete omission from
13 the credible fear interview of any mention of the NCP. Further,
14 a review of the credible fear interview record shows that Sharma
15 was asked several questions that should have elicited a response
16 regarding his membership in the NCP if it was, as he later
17 claimed, the major reason the Maoists targeted him.
18 Sharma also argues that the agency erred by ignoring his
19 corroborating evidence: specifically, an information report
20 his wife filed with the Nepalese police in April 2008 regarding
21 an attack by the Maoists. However, the IJ did not ignore this
5
1 evidence: he devoted a paragraph of his oral decision to
2 discussing it, noting that during the hearing, Sharma was
3 confused as to its contents and seemed unfamiliar with it. The
4 IJ stated that he would not use the confusing testimony as a
5 basis for the adverse credibility finding, but would not afford
6 the document any weight, particularly because it was not
7 authenticated. The weight afforded to an applicant’s evidence
8 in immigration proceedings lies largely within the discretion
9 of the agency. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
10 315, 342 (2d Cir. 2006). Further, even affording the
11 information report probative weight, it does not rehabilitate
12 Sharma’s inconsistent testimony regarding his involvement with
13 the NCP and RPP and the timing of his wife’s kidnaping and his
14 flight to India. See Biao Yang v. Gonzales, 496 F.3d 268, 273
15 (2d Cir. 2007). Similarly, Sharma argues that the agency erred
16 because it did not consider the country conditions evidence he
17 submitted; however, that evidence would not affect the IJ’s
18 finding regarding Sharma’s credibility.
19 A totality of the circumstances supports the agency’s
20 adverse credibility determination, based on Sharma’s
21 inconsistencies and omissions. 8 U.S.C.
6
1 § 1158(b)(1)(B)(iii); see Xiu Xia Lin, 534 F.3d at 167.
2 Further, because the only evidence of a threat to Sharma’s life
3 or freedom depended upon his credibility, the agency’s finding
4 that he was not credible necessarily precludes success on his
5 claims for asylum, withholding of removal, and CAT relief.
6 Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
7 Motion to Remand
8 The BIA’s denial of a motion to remand that relies on new
9 evidence is held to the substantive standard for motions to
10 reopen, and is reviewed for abuse of discretion. Li Yong Cao
11 v. U.S. Dep’t of Justice, 421 F.3d 149, 156 (2d Cir. 2005). “A
12 motion to reopen proceedings shall not be granted unless it
13 appears to the Board that evidence sought to be offered is
14 material and was not available and could not have been
15 discovered or presented at the former hearing.” 8 C.F.R.
16 § 1003.2(c)(1); see also Norani v. Gonzales, 451 F.3d 292, 294
17 & n.3 (2d Cir. 2006).
18 Contrary to Sharma’s assertion, the BIA did not abuse its
19 discretion in denying his motion to remand. The BIA determined
20 that an independent translator’s account of translation errors
21 during the merits hearing was not material because the errors
7
1 identified did not affect the IJ’s credibility determination.
2 Indeed, four of the five main translation discrepancies have
3 no bearing on the credibility determination. The fifth
4 discrepancy involves Sharma’s response when confronted with the
5 police information report. The translation of Sharma’s
6 response as rendered by the independent translator does negate
7 the confusion the IJ identified. However, the IJ did not use
8 Sharma’s purported confusion as a basis for the adverse
9 credibility finding. While the IJ afforded the information
10 report limited weight because Sharma seemed unfamiliar with it,
11 and the independent translator’s account shows that Sharma was
12 aware of the report’s contents, as discussed above, even given
13 probative weight, the evidence would not rehabilitate Sharma’s
14 inconsistent testimony or explain his omissions.
15 Because even without the translation errors identified by
16 the independent translator, the IJ would have found Sharma
17 incredible, evidence of those errors was not material to
18 Sharma’s claim, and the BIA did not abuse its discretion when
19 it denied his motion to remand. 8 C.F.R. § 1003.2(c)(1); Li
20 Yong Cao, 421 F.3d at 156.
8
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of removal
3 that the Court previously granted in this petition is VACATED,
4 and any pending motion for a stay of removal in this petition
5 is DISMISSED as moot. Any pending request for oral argument
6 in this petition is DENIED in accordance with Federal Rule of
7 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
8 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
9