Tamang v. Garland

21-6039
Tamang v. Garland
BIA
Poczter, IJ
A208 927 763
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 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 13th day of February, two thousand twenty-three.
5
6 PRESENT:
7 MICHAEL H. PARK,
8 BETH ROBINSON,
9 SARAH A. L. MERRIAM,
10 Circuit Judges.
11 _____________________________________
12
13 SHURESH TAMANG,
14 Petitioner,
15
16 v. 21-6039
17 NAC
18 MERRICK B. GARLAND, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Dilli Raj Bhatta, Esq., New York,
24 NY.
25
26 FOR RESPONDENT: Brian M. Boynton, Acting Assistant
27 Attorney General; Anthony C. Payne,
28 Assistant Director; Lance L. Jolley,
29 Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a Board
2 of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
3 ADJUDGED, AND DECREED that the petition for review is DENIED.
4 Petitioner Shuresh Tamang, a native and citizen of Nepal,
5 seeks review of a January 8, 2021, decision of the BIA affirming
6 a July 16, 2018, decision of an Immigration Judge (“IJ”) denying
7 his application for asylum, withholding of removal, and relief
8 under the Convention Against Torture (“CAT”). See In re Tamang
9 Shuresh, No. A 208 927 763 (B.I.A. Jan. 8, 2021), aff’g No. A 208
10 927 763 (Immigr. Ct. N.Y.C. July 16, 2018). We assume the parties’
11 familiarity with the underlying facts and procedural history.
12 We have considered both the IJ’s and the BIA’s opinions “for
13 the sake of completeness[.]” Wangchuck v. Dep’t of Homeland Sec.,
14 448 F.3d 524, 528 (2d Cir. 2006). The applicable standards of
15 review are well established. See 8 U.S.C. § 1252(b)(4)(B) (“[T]he
16 administrative findings of fact are conclusive unless any
17 reasonable adjudicator would be compelled to conclude to the
18 contrary[.]”); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir.
19 2018) (reviewing adverse credibility determinations “under the
20 substantial evidence standard[]”).
21 “Considering the totality of the circumstances, and all
22 relevant factors, a trier of fact may base a credibility
23 determination on” a variety of factors, including “the consistency
2
1 between the applicant’s or witness’s written and oral statements
2 (whenever made and whether or not under oath, and considering the
3 circumstances under which the statements were made), the internal
4 consistency of each such statement, the consistency of such
5 statements with other evidence of record ... , and any inaccuracies
6 or falsehoods in such statements ... .” 1 8 U.S.C. §
7 1158(b)(1)(B)(iii). We defer “to an IJ’s credibility
8 determination unless, from the totality of the circumstances, it
9 is plain that no reasonable fact-finder could make such an adverse
10 credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167
11 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d at 76. Substantial
12 evidence supports the adverse credibility determination.
13 The agency reasonably relied on inconsistencies and omissions
14 in Tamang’s testimony, application, and documentary evidence
15 regarding the alleged attack on him by Maoists in 2015, while he
16 was living in a monastery, which he contended was in retaliation
17 for his support of the Nepali Congress Party (“NCP”). See 8 U.S.C.
18 § 1158(b)(1)(B)(iii). First, Tamang testified that Maoists said
19 they were attacking him for supporting the NCP, but neither his
1 An IJ may also rely on an applicant’s “demeanor, candor, or
responsiveness” in evaluating credibility. 8 U.S.C. §
1158(b)(1)(B)(iii). The IJ stated that she had considered those
factors but, contrary to Tamang’s argument here, the IJ did not
rely on demeanor as a basis for the adverse credibility
determination.
3
1 written statement nor the Maoists’ 2017 letter mentioned the NCP.
2 Second, he testified that he spoke out against Maoists at public
3 events at the monastery, but he did not mention that activity in
4 his written statement or his initial testimony. Third, he
5 testified that his wife and mother were living at the monastery
6 with him when he was attacked, but their letters do not support
7 that claim. Finally, he testified that Maoists attacked him at
8 the monastery at 8:00 p.m. after he had distributed earthquake
9 relief materials, but his mother’s letter and a letter from the
10 local NCP committee stated that he was beaten “while” distributing
11 materials to victims of the earthquake.
12 Tamang was unable to explain the omissions and
13 inconsistencies. Further, it was reasonable for the IJ to expect
14 some reference to the NCP or political activities in the written
15 statements because that was the only link to a protected ground,
16 which would be required for Tamang to state a claim for asylum or
17 withholding of removal. See Hong Fei Gao, 891 F.3d at 78 (“[T]he
18 probative value of a witness’s prior silence on particular facts
19 depends on whether those facts are ones the witness would
20 reasonably have been expected to disclose.”); Majidi v. Gonzales,
21 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more than
22 offer a plausible explanation for his inconsistent statements to
23 secure relief; he must demonstrate that a reasonable fact-finder
4
1 would be compelled to credit his testimony.” (citation and
2 quotation marks omitted)).
3 These inconsistencies, viewed cumulatively, constitute
4 substantial evidence for the adverse credibility determination.
5 See Likai Gao v. Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven
6 a single inconsistency might preclude an alien from showing that
7 an IJ was compelled to find him credible.”); Xiu Xia Lin, 534 F.3d
8 at 167 (“‘[E]ven where an IJ relies on discrepancies or lacunae
9 that, if taken separately, concern matters collateral or ancillary
10 to the claim, the cumulative effect may nevertheless be deemed
11 consequential by the fact-finder.’” (quoting Tu Lin v. Gonzales,
12 446 F.3d 395, 402 (2d Cir. 2006))). The adverse credibility
13 determination is dispositive of asylum, withholding of removal,
14 and CAT relief because all three claims are based on the same
15 factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d
16 Cir. 2006).
17 For the foregoing reasons, the petition for review is
18 DENIED. All pending motions and applications are DENIED and stays
19 VACATED.
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe,
22 Clerk of Court
5