Kumar v. Lynch

15-799
Kumar v. Lynch
BIA
Mulligan, IJ
A200 819 218
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.
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
19th day of April, two thousand sixteen.
PRESENT:
DENNIS JACOBS,
PETER W. HALL,
DENNY CHIN,
Circuit Judges.
_____________________________________
SOREV KUMAR,
Petitioner,
v. 15-799
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Garish Sarin, Los Angeles, CA.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Holly
M. Smith, Senior Litigation Counsel;
Jane T. Schaffner, Trial Attorney,
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.
Petitioner Sorev Kumar, a native and citizen of India,
seeks review of a February 27, 2015, decision of the BIA
affirming a March 12, 2013, decision of an Immigration Judge
(“IJ”) denying Kumar’s application for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Sorev Kumar, No. A200 819 218 (B.I.A. Feb. 27,
2015), aff’g No. A200 819 218 (Immig. Ct. N.Y. City Mar. 12,
2013). We assume the parties’ familiarity with the underlying
facts and procedural history in this case.
Under the circumstances of this case, we have considered
both the IJ’s and the BIA’s opinions “for the sake of
completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
524, 528 (2d Cir. 2006). The applicable standards of review
2
are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin
Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
Under the REAL ID Act of 2005, the agency may, in light of
“the totality of the circumstances,” base an adverse
credibility determination on an asylum applicant’s “demeanor,
candor, or responsiveness,” the plausibility of his account,
and inconsistencies in his statements, “without regard to
whether” those inconsistencies go “to the heart of the
applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin
v. Mukasey, 534 F.3d 162, 165 (2d Cir. 2008). Under the
“substantial evidence” standard of review, “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.” Xiu Xia Lin,
534 F.3d at 167.
Here, the adverse credibility determination is sound.
Kumar’s testimony was inconsistent with respect to when and why
he obtained his passport. He testified that he applied for a
passport because he feared for his life after being beaten by
Congress Party members in April 2006. When the Government
3
noted that Kumar’s passport was issued in February 2006, Kumar
explained that he “had already applied for the passport, and
afterwards” submitted a “second application to expedite the
process.” The Government countered: the expedited application
must have been submitted before April because the passport was
issued in February. Kumar then explained that Congress Party
members had been delivering threats at his house, and those
drove him to apply for a passport. The Government countered:
Kumar did not join the opposition party until March 2006, a month
after the passport was issued. Kumar then explained that his
family had applied for the passport on his behalf without
consulting him, and that he did not remember this earlier. A
reasonable adjudicator would not be compelled to credit this
explanation. Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.
2005).
The IJ found that Kumar’s demeanor was questionable during
this exchange. “[T]he IJ has the unique advantage among all
officials involved in the process of having heard directly from
the applicant,” and so we generally defer to demeanor findings.
Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir. 2004), overruled
4
on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494
F.3d 296 (2d Cir. 2007). That is particularly so if the
demeanor finding is “supported by specific examples of
inconsistent testimony.” Li Hua Lin v. U.S. Dep’t of Justice,
453 F.3d 99, 109 (2d Cir. 2006). Here, the demeanor finding
was supported by Kumar’s inconsistent testimony about his
passport: the IJ observed that when the Government confronted
Kumar about the date of his passport, Kumar’s “demeanor changed
noticeability. He looked quite anxious and dejected.”
In his brief to this Court, Kumar asserts that the IJ
overlooked that Kumar had to testify through a Punjabi
interpreter about events that occurred seven years earlier. He
attributes the inconsistencies regarding his passport to “the
normal limits of human understanding and memory.” Kumar did
not testify to that effect at his hearing, and “an attorney’s
unsworn statements in a brief are not evidence.” Kulhawik v.
Holder, 571 F.3d 296, 298 (2d Cir. 2009). Regardless, even if
Kumar had offered the explanation, the agency would not have
been compelled to credit it. Majidi, 430 F.3d at 80.
5
The IJ also found that Kumar’s testimony was implausible
(albeit without using that precise term). “The point at which
a finding that testimony is implausible ceases to be sustainable
as reasonable and, instead, is justifiably labeled
‘speculation,’ in the absence of an IJ’s adequate explanation,
cannot be located with precision,” but as a general matter, such
a finding should be upheld unless we are “left with the definite
and firm conviction that a mistake has been committed.” Ming
Xia Chen v. BIA, 435 F.3d 141, 145 (2d Cir. 2006) (internal
citation omitted). Here, the agency committed no mistake
because the IJ’s finding was “tethered to record evidence.”
Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2007). Kumar
testified that if returned to India, he would continue to “speak
out” politically; he admitted, however, that he is in no way
politically active in the United States. Kumar’s political
activities were limited to a two-month period (March and April
2006) and did not include voting. He said he was unaware of
the 2009 elections in India explaining that he “didn’t pay
attention.” Given this testimony and Kumar’s assertion that
6
he will be targeted based on his political beliefs, the agency
was justified in finding his claim implausible.
The agency also cited inconsistencies between Kumar’s
testimony and his party secretary’s letter. Kumar testified
that between March and April 2006, he attended two or three
rallies to attract new members to the party. By contrast, the
party secretary’s letter stated that Kumar “took part in many
rallies, protest march and demonstration [sic]. . . against
police brutality, for promoting our agenda for achievement of
Khalistan.” When pressed about the significance of Khalistan,
moreover, Kumar foundered. He understood Khalistan to be a
place where Muslims, Hindus, Sikhs, and Christians can live
together under the leadership of India, and he had never heard
of the idea that Khalistan would become an independent nation.
But his party secretary’s letter spoke of the “formation of
Khalistan,” and Kumar’s own documentary evidence included a
Wikipedia entry about the secessionist movement to create a
separate Sikh state called Khalistan. This disconnect further
supported the agency’s adverse credibility determination.
7
Because the only evidence of a threat to Kumar depended on
his credibility, the agency’s finding that he was not credible
necessarily precludes success on his claims for asylum,
withholding of removal, and CAT relief. See Paul v. Gonzales,
444 F.3d 148, 156-57 (2d Cir. 2006).
Kumar argues that the credibility determination did not
defeat his CAT claim. He points to the State Department’s
country reports on human rights in India, which, in his view,
indicate that it is “a very corrupt society and country where
political parties like the Congress party control the Indian
police and commit major human rights violations.”
The agency “may not deny an alien’s CAT claim solely on the
basis of its determination that the applicant’s testimony is
not credible.” Ramsameachire v. Ashcroft, 357 F.3d 169, 184
(2d Cir. 2004). But that is true only if the alien’s CAT claims
are “analytically separate from [his] asylum claims.” Xue Hong
Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).
In a case like this one, however, in which the fear of torture
is based on past activity that has been found not to be credible,
8
the adverse credibility determination is dispositive. Paul v.
Gonzales, 444 F.3d at 156-57.
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
9