Nduwimana v. Barr

18-1690
Nduwimana v. Barr
BIA
Reid, IJ
A213 045 920
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 14th day of September, two thousand twenty.
PRESENT:
ROBERT A. KATZMANN,
RAYMOND J. LOHIER, JR.,
STEVEN J. MENASHI,
Circuit Judges.
_____________________________________
APOLLINAIRE NDUWIMANA,
Petitioner,
v. 18-1690
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: William J. Harrington, Allison R.
Klein, Goodwin Procter LLP, New
York, NY.
FOR RESPONDENT: Ethan P. Davis, Acting Assistant
Attorney General; Leslie McKay,
Senior Litigation Counsel;
Christina P. Greer, Trial
Attorney, Office of Immigration
Litigation, United States
Department of Justice, Washington,
DC.
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 Apollinaire Nduwimana, a native and citizen
of Burundi, seeks review of a May 9, 2018 decision of the
BIA affirming a December 7, 2017 decision of an Immigration
Judge (“IJ”) denying Nduwimana’s application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). See In re Apollinaire Nduwimana,
No. A 213 045 920 (B.I.A. May 9, 2018), aff’g No. A 213 045
920 (Immig. Ct. Batavia Dec. 7, 2017). We assume the
parties’ familiarity with the underlying facts, procedural
history of the case, and issues on appeal.
“We review the IJ’s decision as modified by the BIA,
i.e., minus the arguments for denying relief” that the BIA
declined to reach. Urgen v. Holder, 768 F.3d 269, 272 (2d
Cir. 2014) (per curiam).1 The standards of review are well
1
Unless otherwise indicated, in quoting cases, all internal
quotation marks, alterations, emphases, footnotes, and
citations are omitted.
2
established. See 8 U.S.C. § 1252(b)(4); Hong Fei Gao v.
Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing adverse
credibility determination for substantial evidence).
The agency may, considering the totality of the
circumstances, base a credibility finding on an asylum
applicant’s “demeanor, candor, or responsiveness,”
plausibility of his account, and inconsistencies in his
statements or between his statements and other evidence,
without regard to whether they go “to the heart of the
applicant’s claim, or any other relevant factor.” 8 U.S.C.
§ 1158(b)(1)(B)(iii). “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
v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong
Fei Gao, 891 F.3d at 76.
Although at least one reason that the IJ provided for
its adverse credibility determination may not be supported
by substantial evidence,2 the agency’s overall adverse
2 For instance, to the extent the agency found it
implausible that Nduwimana was able to leave the country
while a warrant for his arrest was outstanding, the record
suggests that this is indeed what happened: there is no
dispute that Nduwimana flew from Burundi to the United
States on or about May 26, 2017, and a signed copy of the
warrant, dated May 7, 2017, was admitted into evidence.
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credibility determination, based on other proffered reasons,
is supported by substantial evidence:
First, the IJ reasonably relied on an implausibility
finding regarding certain aspects of Nduwimana’s testimony
on his departure from Burundi. See 8 U.S.C. §
1158(b)(1)(B)(iii); Wensheng Yan v. Mukasey, 509 F.3d 63, 66
(2d Cir. 2007) (“It is well settled that, in assessing the
credibility of an asylum applicant’s testimony, an IJ is
entitled to consider whether the applicant’s story is
inherently implausible.”). Specifically, the agency
reasonably found it implausible that the men who destroyed
Nduwimana’s house, kidnapped him, beat him up, and nearly
killed him would, on the very same day, ultimately
facilitate his safe passage out of the country by, for
instance, calling the airport ahead of time. See Siewe v.
Gonzales, 480 F.3d 160, 168–69 (2d Cir. 2007) (“The
speculation that inheres in inference is not ‘bald’ if the
inference is made available to the factfinder by record
facts, or even a single fact, viewed in the light of common
sense and ordinary experience.”).
Second, the agency reasonably relied on Nduwimana’s
demeanor, finding he was hesitant or unresponsive when
confronted with certain aspects of his claim, including his
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wife’s health and the last time they had spoken, and whether
he had ever been physically harmed based on his ethnicity.
See 8 U.S.C. § 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430
F.3d 77, 81 n.1 (2d Cir. 2005). The demeanor finding is
supported by the record.
Third, the agency reasonably relied on the fact that
Nduwimana omitted to mention in his asylum application that
his mother and brother had been killed because of their
ethnicity. When the asylum application form explicitly asks
whether a family member has “ever experienced harm or
mistreatment or threats in the past by anyone,” Certified
Admin. Record 438, “a credible petitioner” in Nduwimana’s
position “would reasonably have been expected to disclose”
the murders of family members, because their ethnic identity
would have been directly probative to one’s claim of fear
based on his ethnicity. Hong Fei Gao, 891 F.3d at 79.
Fourth, the agency reasonably relied on Nduwimana’s
admitted false statement to Canadian border officials.
Although it is “unreasonable to penalize an applicant for
lying to escape persecution itself,” Rui Ying Lin v.
Gonzales, 445 F.3d 127, 134 (2d Cir. 2006), Nduwimana was
not fleeing the danger in Burundi by the time he had arrived
at the U.S.-Canadian border. Accordingly, his lies to
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Canadian border officials may weigh against his credibility.
Finally, we agree with Nduwimana that the agency should
have more thoroughly addressed Nduwimana’s corroborating
documentary evidence and country conditions in Burundi,
because the agency is required to consider the totality of
the record and provide a reasoned decision. See Wei Guang
Wang v. Bd. of Immigration Appeals, 437 F.3d 270, 275 (2d
Cir. 2006); Poradisova v. Gonzales, 420 F.3d 70, 81 (2d Cir.
2005). However, under the circumstances of this case, the
agency did not abuse its discretion by declining to credit
corroborating evidence whose reliability and authenticity
depended on Nduwimana’s credibility. See Y.C. v. Holder,
741 F.3d 324, 332 (2d Cir. 2013) (“We generally defer to the
agency’s evaluation of the weight to be afforded an
applicant’s documentary evidence.”); Siewe, 480 F.3d at 170
(“An IJ may, either expressly or impliedly . . . discredit
evidence that does not benefit from corroboration or
authentication independent of the petitioner’s own
credibility.”). Moreover, as the agency explained, the
affidavits from friends, family, and colleagues in Burundi
did not resolve the problems noted above, because they did
not render Nduwimana’s departure more plausible, ameliorate
the demeanor or omission issues, or negate his false
6
statements to Canadian border officials. Given Nduwimana’s
lack of credibility -- which called into question whether he
was targeted by the Burundian government or security forces
-- we decline to remand for further consideration country
conditions evidence because the evidence of the targeting of
some Tutsis did not rehabilitate Nduwimana’s credibility as
to his own experiences. See Jian Hui Shao v. Mukasey, 546
F.3d 138, 169 (2d Cir. 2008) (noting that agency is not
required to “expressly parse” all of the evidence).
Given the “totality of the circumstances,” the agency’s
adverse credibility determination is supported by
substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii).
That determination was dispositive of asylum, withholding of
removal, and CAT relief because all three claims were based
on the same factual predicate. See Paul v. Gonzales, 444
F.3d 148, 156–57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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