Bist v. Holder

11-4907
Bist v. Holder
BIA
A094 813 842
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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 10th day of October, two thousand thirteen.
PRESENT:
ROSEMARY S. POOLER,
REENA RAGGI,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
TILAK KALBAHADUR BIST,
Petitioner,
v. 11-4907
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Galab B. Dhungana, New York, NY.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Terri J. Scadron,
Assistant Director; Meadow W. Platt,
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 Tilak Kalbahadur Bist, a native and citizen
of Nepal, seeks review of the November 8, 2011, order of the
BIA denying his motion to reconsider and reopen. In re
Tilak Kalbahadur Bist, No. A094 813 842 (B.I.A. Nov. 8,
2011). We assume the parties’ familiarity with the
underlying facts and procedural history of the case.
We review the BIA’s denial of Bist’s motion to
reconsider and reopen as untimely for abuse of discretion.
See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per
curiam). A motion to reconsider must “specify the errors of
fact or law in the [challenged BIA decision] and [] be
supported by pertinent authority.” See 8 U.S.C.
§ 1229a(c)(6); Ke Zhen Zhao v. Mukasey, 265 F.3d 83, 90 (2d
Cir. 2001); 8 C.F.R. § 1003.2(b)(1).
We find that the BIA did not abuse its discretion here.
Contrary to Bist’s argument that his testimony was
internally consistent and consistent with his supporting
documentation, the BIA did not err in finding that the IJ’s
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adverse credibility determination was supported by the
following inconsistencies: (1) Bist’s testimony that his
wife never had to leave their home, which contradicted his
written statement that Maoists’ threats forced his family to
move and his later testimony that his wife did in fact leave
their Kathmandu home; and (2) Bist’s testimony that Maoists
first approached him in 2005, which contradicted his
relative’s letter which gave the year as 1999.
The BIA also did not err in finding that Bist failed to
establish that his due process rights were violated because
he did not demonstrate how the translator’s performance
during his removal proceedings prejudiced him. See Rabiu v.
INS, 41 F.3d 879, 882 (2d Cir. 1994) (requiring a showing of
prejudice to establish a due process violation); Matter of
D-R-, 25 I. & N. Dec. 445, 461 (BIA 2011) (holding that an
alien challenging the competency of a translator must show
both that the translator did not perform competently and
that the alien was prejudiced as a result). Although the
record contains examples of instances where the translator
required extra questions to ascertain Bist’s meaning or
where the translator admitted to being “not very good” at
reading Nepalese, Bist has not identified what, if any,
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testimony was translated erroneously. Because Bist did not
specify any errors in the BIA’s previous decision, the BIA
did not abuse its discretion in denying Bist’s motion to
reconsider.
In seeking reopening, Bist offered evidence showing
that the Maoists had gained control of the internal security
and police forces in Nepal. However, because the evidence
of changed country conditions was related to his claim that
he was subject to persecution in Nepal because of his anti-
Maoist views, a claim which the agency had found to be not
credible, any change in conditions was not material as he
had not demonstrated error in the adverse credibility
determination.* See 8 C.F.R. § 1003.2(c)(1) (requiring that
the new evidence supporting reopening be material); see also
Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-49 (2d Cir.
2007) (relying on the doctrine falsus in uno, falsus in
omnibus to conclude that the agency does not abuse its
discretion in denying a motion to reopen based on changed
country conditions where there is an underlying adverse
*
Bist requests that this Court take judicial notice of
an additional fact relating to country conditions. That
request is denied because judicial review is limited to the
administrative record. See 8 U.S.C. § 1252(b)(4)(A).
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credibility finding). Accordingly, the BIA did not abuse
its discretion in denying reopening.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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