20

- 3168 Timalsina v. Garland BIA Lurye , IJ A 2 0 8 927 879 

### 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.**
**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thu**  **rgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 19**  **th da**  **y of December**  **, two thousand twenty** 
**** 4 **two**

**.** 5 6 **PRESENT:** 7 **JON O. NEWMAN,** 8 **MICHAEL H. PARK,** 9 **EUNICE C. LEE,** 10 **Circuit Judges.** 11

**_____________________________________** 12 13 **NAGENDRA PRASAD TIMALSINA ,**  14 **Petitioner ,**  15 16
**v. 20** 

**- 3168**  17 **NAC** 18 **MERRICK B. GARLAND ,**  **UNITED** 19 **STATES ATTORNEY GENERAL,** 20 **Respondent**

**.** 21

**_____________________________________** 22 23 242 **FOR PETITIONER :**  Khagendra Gharti

- Chhe t ry , New 1 York , NY

. 2 3 **FOR RESPONDENT:** Brian Boynton , Acting Assistant 4 Attorney General ; Justin R. 5 Markel , Paul Fiorino , Senior 6 Litigation Counsel , Office of 7 Immigration Litigation, United 8 States Department of Justice, 9 Washington, D C. 10

UPON DUE CONSIDERATION of th is petition for review of a 11
Board of Immigration Appeals (“BIA”) decision, it is hereby 12
ORDERED, ADJUDGED, AND DECREED that the petitio n for review 13

is DENIED

. 14

Petitioner Nagendra Prasad Timalsina , a native and 15

citizen of Nepal , seeks review of a n August 26 , 2020 decision 16
of the BIA affirming a n August 16 , 2018 decision of an 17
Immigration Judge (“IJ”) denying his application for asylum, 18
withholding of removal, and relief under the Convention 19
Against Torture (“CAT”)

. In re Nagendra Prasad Timalsina , 20

No. A 20 8

- 9 27

- 879 (B.I.A. Aug. 26 , 20 20 ), aff’g No. A 20 8

- 927

- 21

879 (Immig r . Ct. N.Y. C. Aug

. 16 , 2018 ). We assume the 22
parties’ familiarity with the underlying facts and procedural 23
history

. 24

The BIA afirmed without an opinion, so w e review the IJ’s 25

decision directly

. Twum v. INS , 411 F.3d 54, 58 (2d Cir. 263 2005). The applicable standards of review are well 1

established. See 8 U.S.C. § 1252(b)(4)(B) (“ [T] he 2
administrative findings of fact are conclusive unless any 3
reasonable adjudicator would be compelled to conclude to the 4

contrary

. ”) ; Hong Fei Gao v. Sessions , 891 F.3d 67, 76 (2d 5
Cir. 2018) (reviewing adverse credibility determination under 6

“ substantial evidence ” standard ). 7
“Considering the totality of the circumstances, and all 8
relevant factors, a trier of fact may base a credibility 9

determination on ” the “ consistency between the 10
applicant’s

. . . written and oral statements (whenever made 11
and whether or not under oath, and considering the 12
circumstances under which the statements were made) , the 13
internal consistency of each such statement, [and] the 14

consiste ncy of such statements with other evidence of record ” 15

without “ regard to whether an inconsistency, inaccuracy, or 16
falsehood goes to the heart of the applicant’s claim, or any 17

other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “ We 18

defer

. . . to an IJ’s credibility determination 19

unless

. . . it is plain that no r easonable fact

- finder could 20
make such an adverse credibility ruling.” Xiu Xia Lin v. 214 Mukasey , 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei 1

Gao , 891 F.3d at 76. 2
Timalsina alleged that members of Nepal ’s Communist Party 3
(“Maoists”) attacked and thre atened him because of his 4
membership and involvement in the Nepali Congress Party 5

(“NCP”). Substantial evidence supports the agency’s adverse 6
credibility determination. The agency reasonably relied on 7

inconsistencies among Timalsina’s testimony , interview 8
statements, and documentary evidence. See 8 U.S.C. 9

§ 1158(b)(1)(B)(iii)

. 10
As an initial matter, the agency did not err in 11
concluding that the interview record was reliable

. The 12

interview was memorialized in a typed document that appears 13

to li st verbatim 12 7 questions and Timalsina’s responses, and 14

it was conducted through an interpreter in Timalsina’s native 15
language . Moreover , the interviewer asked follow

- up 16
questions to elicit the details of an asylum claim, and 17
Timalsina stated that he understood all the questions he was 18

asked . H e had opportunities to clarify his responses, and 19
there was no indication that he was reluctant to provide 20

inform ation given his responsive and detailed answers. See 215 Ming Zhang v. Holder , 585 F.3d 715, 724 (2d Cir. 2009) ( “ Where 1
the record of a credible fear interview displays the hallmarks 2
of reliability, it appropriately can be considered in 3
assessing an alien ’ s credibility. ” )

. 4

The inconsistencies identified by the agency support the 5
adverse credibility determination. Timalsina was 6
inconsistent regarding an alleged attack. He testif ied that 7
it occurred on the evening of November 10, 2013, that he went 8
to the hospital before going home and was treated that night, 9

and that he went to the police once to report the attack. 10
But the interview record and documentary evidence

— 11
specifically , medical records and a letter from his wife

— 12
separately indicate that the attack was in 2017 instead of 13

2013; that the medical treatment was in the morning and not 14
at night; that Timalsina went home before going to the 15
hospital , rather than the other way around; and that he went 16
to the police not once, but twice. The r ecord reflects 17
further inconsistency between his testimony and interview 18
statements about whether the police said they would act on 19
his complaint. 206 The IJ was not required to credit Timalsina’s 1
explanations that he did not understand the question s and 2

th at he was confused during the interview. See Majidi v. 3

Gonzales , 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must 4
do more than offer a plausible explanation for his 5

inconsistent statements to secure relief; he must demonstrate 6

that a reasonable fact

- finder would be compelled to credit 7
his testimony.” ( cleaned up ))

. 8
The agency also reasonably concluded that Timalsina 9
failed to rehabilitate his testimony with corroborating 10

evidence. See Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d 11
Cir. 2007) (“ An applicant ’ s failure to corroborate his or her 12
testimony may bear on credibility, because the absence of 13
corroboration in general makes an applicant unable to 14
rehabilitate testimony that has already been called into 15
question. ”)

. T he agency was thus not required to credit 16
supporting letters and medical records. The letters were 17

from interested parties or parties that were unavailable for 18

cross - examination , and , as noted above, the letter from 19

Timalsina’s wife and his medical records were inco n si s tent 20

with his version of events

. See Y.C. v. Holder , 741 F.3d 217 324, 332 (2d Cir. 2013) ( “ We generally defer to the agency ’ s 1
evaluation of the weight to be afforded an applicant ’ s 2
documentary evidence.” ); see Likai Gao v. Barr , 968 F.3d 137, 3
149 (2d Cir. 2020)

. 4
Given the multiple inconsistencies and lack of reliable 5
corroboration, substantial evidence supports the adverse 6
credibility determination. See Xiu Xia Lin , 534 F.3d at 167; 7
Biao Yang , 496 F.3d at 273. The agency’s adverse credibility 8

determination is dispositive because Timalsina’s claims for 9
asylum, withho lding of removal, and CAT reli e f were all based 10
on the same factual predicate. See Paul v. Gonzales , 444 11
F.3d 148, 156

– 57 (2d Cir. 2006). 12
For the foregoing reasons, the petition for review is 13

DENIED

. All pending motions and applications are DENIED and 14
stays VACATED

. 15

FOR THE COURT: 16 Catherine O ’ Hagan Wolfe , 17 Clerk of Court 18 19