Kumar-Pun v. Garland

21-6133
Kumar-Pun v. Garland
BIA
Poczter, IJ
A209 164 889
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 the Second
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 19th day of May, two thousand twenty-
4 three.
5
6 PRESENT:
7 JOSEPH F. BIANCO,
8 SARAH A. L. MERRIAM,
9 MARIA ARAÚJO KAHN,
10 Circuit Judges.
11 _____________________________________
12
13 RAJAN KUMAR-PUN,
14 Petitioner,
15
16 v. 21-6133
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
1 FOR PETITIONER: Shiva Prasad Khanal, Esq., New York, NY.
2
3 FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney
4 General; Derek C. Julius, Assistant Director;
5 Erik R. Quick, Trial Attorney, Office of
6 Immigration Litigation, United States
7 Department of Justice, Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a Board of
10 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
11 DECREED that the petition for review is GRANTED.
12 Petitioner Rajan Kumar-Pun, a native and citizen of Nepal, seeks review of
13 a March 1, 2021 decision of the BIA, affirming a September 7, 2018 decision of an
14 Immigration Judge (“IJ”), which denied his application for asylum, withholding
15 of removal, and relief under the Convention Against Torture (“CAT”). In re Rajan
16 Kumar-Pun, No. A209 164 889 (B.I.A. Mar. 1, 2021), aff’g No. A209 164 889 (Immigr.
17 Ct. N.Y. City Sept. 7, 2018). We assume the parties’ familiarity with the underlying
18 facts and procedural history.
19 We have reviewed both the BIA’s and IJ’s opinions. See Yun-Zui Guan v.
20 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). We review factual findings, including
21 an adverse credibility determination, “under the substantial evidence standard,”
22 Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018), and “the administrative
2
1 findings of fact are conclusive unless any reasonable adjudicator would be
2 compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B).
3 “Considering the totality of the circumstances, and all relevant factors, a
4 trier of fact may base a credibility determination on . . . the consistency between
5 the applicant’s or witness’s written and oral statements . . . , the internal
6 consistency of each such statement, the consistency of such statements with other
7 evidence of record . . . and any inaccuracies or falsehoods in such statements,
8 without regard to whether an inconsistency, inaccuracy, or falsehood goes to the
9 heart of the applicant’s claim, or any other relevant factor.” 8 U.S.C.
10 § 1158(b)(1)(B)(iii). Kumar-Pun alleged that Maoists confronted him on several
11 occasions between 2009 and 2016, threatened to kill him, and attacked him and his
12 family because of his support for the Nepali Congress Party. We remand in light
13 of, as discussed below, the lack of direct inconsistency between Kumar-Pun’s
14 written statement and the hearing testimony.
15 First, the IJ found inconsistencies between Kumar-Pun’s written statement
16 and testimony regarding whether he had received death threats. The IJ’s
17 conclusion that Kumar-Pun’s written statement indicated that the Maoists
18 threatened to kill him in 2009, 2011, and 2016, but that his testimony, particularly
3
1 on direct examination, “did not indicate that they threatened to kill him or
2 threatened him with death” is not supported by the record. Certified
3 Administrative Record (“CAR”) at 91. The IJ appears to fault Kumar-Pun for
4 writing that he was threatened with death in 2011, but then testifying to the actions
5 that constituted the threats, i.e., the IJ appears to have interpreted the written
6 statement as alleging that only verbal death threats were made, while Kumar-Pun
7 testified to physical threats and attacks. However, there is no actual inconsistency
8 because the written application does not specify that the threats were verbal. As
9 to the 2009 incident, Kumar-Pun did not explicitly mention death threats on direct
10 examination; however, he discussed being threatened by Maoists in 2009, and that
11 he feared they would kill him. In addition, on cross-examination he clarified that
12 the Maoists threatened to kill him. Regarding the 2016 incident, Kumar-Pun did
13 not testify that the Maoists threatened to kill him; instead, he stated that the
14 Maoists demanded that he donate money to the party, that he told them to come
15 back in a few days even though he had no intention of giving them the money,
16 and that he did so to “save himself” and because he “wanted to escape.” CAR at
17 141–42. The IJ’s reliance on Kumar-Pun’s failure to use the words “threatened to
18 kill” or “threatened with death” when otherwise describing the incidents
4
1 consistently with his written statement was error because “trivial differences in
2 the wording of statements describing the same event are not sufficient to create
3 inconsistencies.” Gurung v. Barr, 929 F.3d 56, 61 (2d Cir. 2019). To the extent that
4 the IJ found discrepancies in the way that Kumar-Pun described the 2009 and 2016
5 incidents at the hearing, the discrepancies are more properly characterized as
6 omissions than as inconsistencies because he did not “describe[] the same
7 incidents of persecution differently” or directly contradict his earlier statements.
8 Hong Fei Gao, 891 F.3d at 78.
9 Second, the IJ found Kumar-Pun’s written statement, which indicated that
10 the Maoists stole money from his house in 2011, demanded that he donate to the
11 party, and promised to return for the donation, inconsistent with his direct
12 testimony about that incident. The IJ mischaracterized Kumar-Pun’s testimony in
13 part, because Kumar-Pun did testify that the Maoists promised to return in five
14 days. As with the prior inconsistency finding, there was no contradiction: Kumar-
15 Pun testified consistently as to the important aspects of the 2011 incident on direct
16 examination, and when confronted with his failure to mention the donation
17 demand or missing money, he testified consistently with his written statement.
18 While there is a difference in the level of detail in the statements, there is no
5
1 inconsistency. See Hong Fei Gao, 891 F.3d at 82 (no support for adverse credibility
2 determination where “trivial omission that had no bearing on [applicant’s]
3 credibility”). As to the missing money, the IJ erred in finding this omission
4 significant because Kumar-Pun testified consistently regarding the more serious
5 parts of the 2011 incident, and omissions related to the aftermath of an incident of
6 persecution are not as relevant to credibility as omissions or inconsistencies about
7 the persecution itself. See Hong Fei Gao, 891 F.3d at 79–80; see also Singh v. Garland,
8 6 F.4th 418, 428 (2d Cir. 2021) (explaining that “the less importance the omitted fact
9 would have had to the objective of the statement from which it was omitted, the
10 less the two statements can be seen as inconsistent or as supplying a basis for
11 doubting veracity”).
12 Third, the IJ found inconsistency in Kumar-Pun’s testimony regarding
13 where he went after the 2011 attack, finding that he testified that he went to Saudi
14 Arabia, but that his written statement said he first went to Kathmandu. However,
15 although he omitted the intervening weeks in Kathmandu from his testimony, he
16 was not inconsistent about leaving Nepal or when he left. Moreover, even if
17 appropriately deemed an omission, it is not a strong indication of falsity given that
18 it relates to the aftermath, not the persecution itself. Cf. Hong Fei Gao, 891 F.3d at
6
1 80–81 (“We hesitate to suggest that petitioners’ initial submissions must detail not
2 only persecution they faced, but also the aftermath of the alleged persecution, lest
3 they be found not credible.”).
4 Fourth, the IJ determined that Kumar-Pun’s explanations as to why he did
5 not become a member of the Nepali Congress Party until 2007, even though he had
6 been a supporter since 2002, were internally inconsistent. When asked to explain,
7 Kumar-Pun first testified that that he “did not have any idea” about becoming a
8 party member and that he became a member when his friend told him about it,
9 and later testified that he knew that he could become a member, but that it was
10 not the right time and that he feared Maoists. CAR at 148–49. Even accepting the
11 IJ’s characterization of inconsistency, the IJ mischaracterized the discrepancy as
12 material because Kumar-Pun was consistent that he had supported the party since
13 2002 and became a member in 2007, and none of his other allegations relied on
14 differentiating between supporters and official members of the Nepali Congress
15 Party. See Malets v. Garland, 66 F.4th 49, 56 (2d Cir. 2023) (holding that “the
16 mischaracterization of an irrelevant matter as ‘central’ and ‘material’ weighs in
17 favor of rejecting such a finding”).
18 We remand because, as set forth above, the agency’s inconsistency findings
7
1 did not identify any direct contradictions between or within Kumar-Pun’s written
2 and oral statements. See Gurung, 929 F.3d at 62 (“When the agency has denied
3 asylum and related relief on credibility grounds, we can (and we will) affirm only
4 if (a) the agency offered a clearly independent and sufficient ground for its ruling,
5 one that is not affected by any erroneous adverse credibility findings, or (b) the
6 evidentiary record includes statements that are so inconsistent that we can be
7 confident that the agency would not accept any kind of explanation.”). The
8 agency’s additional finding that the lack of reliable corroboration further
9 undermined Kumar-Pun’s credibility is not alone sufficient to support the adverse
10 credibility determination. See Chuilu Liu v. Holder, 575 F.3d 193, 198 n.5 (2d Cir.
11 2009) (holding that “while a failure to corroborate can suffice, without more, to
12 support a finding that an alien has not met his burden of proof, a failure to
13 corroborate cannot, without more, support an adverse credibility determination”).
14 For the foregoing reasons, the petition for review is GRANTED, the BIA’s
15 decision is VACATED, and the case is REMANDED for further proceedings. All
16 pending motions and applications are DENIED and stays VACATED.
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe,
19 Clerk of Court
8