18-1138

BK v. Barr BIA Christensen, IJ A202 125 042 

### UN I TE D S TATE S COURT O F AP PEAL S FOR T HE S E COND C I RCU I T 

# SU M M A R Y OR DER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL R ULE 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 PA RTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WI TH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO 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 2 for the Second Circuit, held at the Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 13 th

day of October, two thousand twenty. 5 6 PRESENT: 7 ROSEMARY S. POOLER, 8 RAYMOND J. LOHIER, JR., 9 MICHAEL H. PARK, 10 Circuit Judges. 11

_____________________________________ 12 13 B HIRIRA BK, 14 Petitioner , 15 16 v. 18-1138 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent . 21

_____________________________________ 22 23 FOR PETITIONER: Khagendra Gharti-Chhetry, New 24 York, NY. 25 26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 27 General; Sabatino F. Leo, Senior1 Litigation Counsel; Linda Y.

2 Cheng, Trial Attorney, Office of 3 Immigration Litigation, United 4 States Department of Justice, 5 Washington, DC. 6 UPON DUE CONSIDERATION of this petition f o r review of a 7 Board of Imm i gration Appeals (“BIA”) decision, it is hereby 8 ORDERED, ADJUDGED, AND DECREED that the petition for review 9 is DENIED. 10 Petitioner B Hirira BK, a native and citizen of Nepal, 11 seeks review of a March 19, 2018 decision of the BIA 12 affirming a June 26, 2017 decision of an Imm i g r a t i o n Judge 13 (“IJ”) denyi ng BK’s application for asylum, withholding of 14 removal, and relief under the C onvention Against Torture 15 ( “ C A T ” ) . In re B Hirira BK, No. A 202 125 042 (B.I.A. Mar. 16 19, 2018), aff’g No. A 202 125 042 (Immi g . C t. N.Y.C. Jun. 17 26, 2017). We assume th e parties’ familiarity with the 18 underlying facts and procedural history.

Under the cir c um stances of this case, we consider both 19 the IJ’s and the BIA’s decisions. See Yun-Zui Guan v. 20 21 Gonzales , 432 F.3d 3 9 1 , 394 (2d Cir. 2005). We review the 22 agency’s adverse credibility determination for substantial 23 evidence. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. 24 Sessions , 891 F.3d 67, 76 (2d Cir. 2018). “Considering the 21 totality of the circumstances , a nd all relevant factors, a

2 trier of fact may base a credibility determination o n the 3 demeanor, candor, or responsiveness of the applicant . . . , 4 the c o nsistency between the applicant’s . . . written and 5 oral statements . . . , the internal consistency of each 6 such statement, the consis t e n c y of such statements with 7 other evidence of record . . . wit h o u t r e g ard to whether an 8 inconsistency, inaccuracy, or falsehood goes to the heart of 9 the ap p l i c a nt’s claim, or any other relevant factor.” 8 10 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . t o an IJ’s 11 credibility determination unless, from the totality of th e 12 circumstances, it is plain that no reasonable fa c t

- f inder 13 could make such an adverse credibility ruling.” Xiu Xia Lin 14 v. Mukasey , 534 F.3d 162, 167 (2d Cir. 2008); accord Hong 15 Fei Gao , 891 F.3d at 76. The adv e r s e c r edibility 16 determination is supported by substantial evidence. 17 The agency reasonably re lied on discrepancies BK’s 18 testimony, his prior statements, and his do c umentary 19 evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii). For example, 20 BK gave inc o n sistent testimony about the chronology of 21 events. He alternatively a l le g e d that he fled his village 22 for Kathmandu in November 2013 after the Maois t s a t tacked 31 him at his home, or that he fled in April 2014; tha t he

stayed in Kathmandu for two or three months, for six months , 2 3 or for one month befo r e g oi n g to Qatar; that he returned to 4 his village five or six times after fleeing, or that he 5 never returned; and that he stopped w o r k i ng after the 6 Maoists attacked him, or that he continued to work after he 7 fled to Kathmandu. 8 The only explanation BK provided for these 9 inconsistencies is that he had a poor memory and that this 10 may relate to the Maoists’ attacks. The IJ was not required 11 to accept this explanation because BK was able to provide a 12 specific chronology of events in hi s application. See 13 Majidi v. Gonzales , 430 F.3d 77, 80 (2d Cir. 2005) (“A 14 petitioner must do m o r e than offer a plausible explanation 15 for his inconsistent statements to s e c u r e relief; he must 16 demonstrate that a reasonable fact-finder would be compelled 17 to credit his testimony.” (internal quotation marks 18 omitted)). 19 The adv er se credibility determination is bolstered by 20 inconsistencies between BK’s sta t e ments and his documentary 21 evidence, as well as by lack of reliable corroboration. The 22 IJ reasonably found that BK’s evidence omitted k e y events 41 and contradicted his testimony. See Biao Ya n g v. Gonzales ,

2 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s failure to 3 corroborate his or her test i m o n y may bear on credibility, 4 because the absence of corroboration in general makes an 5 a p plicant unable to rehabilitate testimony that has alrea d y 6 been called into question. ” ). For example, BK’s wife’s 7 letter does not mention that she was harmed, but BK 8 testified that she was severely beaten when the Maoists came 9 to hi s h o m e . Also, a letter from a leader of the Rastriya 10 Prajatantra Party, with which BK was a f fi liated, reflects 11 that the leader was aware of BK’s problems with the Maoists. 12 But BK t e stified inconsistently both that he told the party 13 about the threats and attacks and that he never told them. 14 Even absent these inconsistencies, we def e r to the the 15 a g ency’s decision to give little weight to BK’s documentary 16 evidence—documents and letters from Nepal—because the 17 documents were not authenticated and the author s w e r e not 18 available for cross-exam i n a ti on. See Y.C. v. Holder , 741 19 F.3d 324, 332 (2d Cir. 2013) (“We generally defer to the 20 agency’s evaluation of the weight to be afforded an 21 applicant’s documentary evidence.”); see also In re H-L-H- & 22 Z-Y-Z- , 25 I. & N. Dec. 209 , 2 1 4 n.5, 215 (BIA 2010) 51 (finding that un sw or n letters from friends and family did

2 not provide substantial support for claims because they were 3 from interested witness e s not subject to cross-examination 4 and noting that the “failure to attempt to prov e t h e authenticity of a document through . . . any . . . means is 5 6 significant”), overruled on other grounds by Hui Lin Huang 7 v. Holder , 677 F.3d 130, 133-38 (2d Cir. 2012). 8 Given the inconsistencies and the lack of reliable 9 c o r r o b o r a t i o n , t h e a g e n c y ’ s a dv e r s e c r e d i b i l i t y 10 determination is supported by substantial evidence. See Xiu 11 Xia Lin , 534 F . 3 d at 167. Contrary to BK’s argument that 12 the agency should have independently analyzed his CAT claim, 13 the adverse credibility determination is dispo s itive of 14 asylum, withholding o f removal, and CAT relief because all 15 three claims are based on the same factual predicate. See 16 Paul v. Gonzales , 444 F.3d 148, 156-57 (2d Cir. 2006). 17 For the foregoing reasons, the pe t i t i o n for review is 18 DENIED. All pending motions and applications are DENIED and 19 stays VACATED. 20 FOR THE COURT: 21 Catherine O’Hagan Wolfe, 22 Clerk of Court

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