12-1833

Samdup v. Holder

BIA

Nelson, IJ

A087 469 108

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

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 13th 4 day of March, two thousand fourteen.

5

6 PRESENT:

7 JOSÉ A. CABRANES,

8 GERARD E. LYNCH,

9 CHRISTOPHER F. DRONEY,

10 Circuit Judges.

11 _____________________________________

12

13 KUNCHOK SAMDUP,

14 Petitioner, 

15

16 v. 12-1833

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent.

21 _______________________________________

22

23 FOR PETITIONER: Steven J. Kolleeny, New York, NY.

24

25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney

26 General; Lyle D. Jentzer, Senior

27 Litigation Counsel; Paul F. Stone,

28 Trial Attorney, Office of

29 Immigration Litigation, United

30 States Department of Justice,

31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a

2 Board of Immigration Appeals (“BIA”) decision, it is hereby

3 ORDERED, ADJUDGED, AND DECREED that the petition for review

4 is DENIED.

5 Petitioner Kunchok Samdup, an alleged native of Tibet

6 and citizen of China, seeks review of an April 5, 2012,

7 order of the BIA, affirming the March 31, 2011, decision of

8 an Immigration Judge (“IJ”), which denied asylum,

9 withholding of removal, and relief under the Convention

10 Against Torture (“CAT”). In re Kunchok Samdup, No. A087 469

11 108 (B.I.A. Apr. 5, 2012), aff’g No. A087 469 108 (Immig.

12 Ct. New York City Mar. 31, 2011). We assume the parties’

13 familiarity with the underlying facts and procedural history

14 in this case. 

15 Under the circumstances of this case, we review the

16 decisions of both the IJ and the BIA. See Yun-Zui Guan v.

17 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam). 

18 The applicable standards of review are well established. 

19 See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v.

20 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam). 

21 For applications such as Samdup’s, which are governed

22 by the REAL ID Act, the agency may base a credibility

23 finding on an applicant’s demeanor, the plausibility of his

2
1 account, and inconsistencies in his statements, without

2 regard to whether they go “to the heart of the applicant’s

3 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). We “defer to an

4 IJ’s credibility determination unless, from the totality of

5 the circumstances, it is plain that no reasonable

6 fact-finder could make such an adverse credibility ruling.” 

7 Xiu Xia Lin, 534 F.3d at 167.

8 Samdup does not challenge the agency’s finding that he

9 testified inconsistently with his application concerning the

10 length of his father’s detention and whether he had hung

11 pro-Tibetan posters in 2002. Instead, he contends that

12 these inconsistencies were an improper basis for the IJ’s

13 credibility determination because they are not material to

14 his claim. Under the REAL ID Act, however, an IJ may rely

15 on inconsistencies that are “not directly material” to an

16 applicant’s claim where “the cumulative effect of those

17 inconsistencies reasonably could have affected the IJ’s

18 [credibility] evaluation.” Xiu Xia Lin, 534 F.3d at 167. 

19 Moreover, the IJ’s credibility determination was not

20 exclusively based on these inconsistencies and was further

21 buttressed by the insufficiency of Samdup’s corroborative

22 evidence and the omission of his high blood pressure and

3
1 blood sugar, which he testified was caused by his

2 mistreatment in China, from his doctor’s affidavit. 

3 Samdup’s assertion that the agency improperly relied on the

4 omission from his doctor’s affidavit, because omissions are

5 treated differently than inconsistencies for the purpose of

6 the credibility finding, is incorrect. See Xiu Xia Lin, 534

7 F.3d at 166 (providing that, for purposes of analyzing a

8 credibility determination, “[a]n inconsistency and an

9 omission are . . . functionally equivalent”). Accordingly,

10 Samdup has failed to show that the identified

11 inconsistencies and omission were an improper basis for the

12 IJ’s adverse credibility determination. See Xiu Xia Lin,

13 534 F.3d at 167; see also Tu Lin v. Gonzales, 446 F.3d 395,

14 402 (2d Cir. 2006). 

15 Having called Samdup’s credibility into question, the

16 agency reasonably determined that his failure to present

17 sufficient corroborative evidence further undermined his

18 credibility. See 8 U.S.C. § 1158(b)(1)(B)(ii) (providing

19 that “[t]he testimony of the applicant may be sufficient to

20 sustain the applicant’s burden without corroboration, but

21 only if the applicant satisfies the trier of fact that the

22 applicant’s testimony is credible, is persuasive, and refers

4
1 to specific facts sufficient to demonstrate that the

2 applicant is a refugee” (emphasis added)); see also Xiao Ji

3 Chen v. US Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.

4 2006) (noting that the weight accorded to the applicant’s

5 evidence lies largely within the discretion of the agency). 

6 We have recognized that an applicant’s failure to

7 corroborate his testimony may bear on credibility, either

8 because the absence of particular corroborating evidence is

9 viewed as suspicious, or because the absence of

10 corroboration makes an applicant unable to rehabilitate

11 testimony that has already been called into question. See

12 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (per

13 curiam). 

14 Contrary to Samdup’s assertion, the agency did not err

15 in according his uncle and brother’s letters diminished

16 weight because they were from interested witnesses not

17 subject to cross examination. See Matter of H-L-H- &

18 Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (rejecting

19 letters from applicant’s relatives and friends because they

20 were “interested witnesses not subject to

21 cross-examination”), overruled in part on other grounds by

22 Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012). In

23 any event, Samdup fails to challenge the agency’s

5
1 determination that these letters were insufficient to

2 rehabilitate his credibility because they omitted any

3 reference to his father’s detention and related death. 

4 Samdup also asserts that the agency erred in according the

5 one-page translation of his 1997 household registry

6 diminished weight. However, he fails to challenge the

7 agency’s finding that the registry’s listing of his sibling

8 as the head of household contradicted his testimony that his

9 father had died from his detention related injuries in 2001

10 and, therefore, did not rehabilitate his credibility. The

11 agency also did not err in declining to credit Samdup’s

12 letters from the Office of Tibet and Tibetan Tehor

13 Association, which indicated that he was a Tibetan refugee,

14 because Samdup failed to submit the underlying documentation

15 upon which the letters’ representation of Tibetan refugee

16 status was based. Xiao Ji Chen, 471 F.3d at 342. 

17 Similarly, contrary to Samdup’s assertion, the agency’s

18 failure to explicitly discuss his letter from the NYU

19 Program for Survivors of Torture does not compellingly

20 suggest that it was ignored because the letter merely

21 indicated, without elaboration, that Samdup had been

22 admitted to the program. See Xiao Ji Chen, 471 F.3d at 337

23 n.17 (presuming that the agency “has taken into account all

6
1 of the evidence before [it], unless the record compellingly

2 suggests otherwise”); Zhi Yun Gao v. Mukasey, 508 F.3d 86,

3 87 (2d Cir. 2007) (noting that the agency is not required to

4 expressly “parse or refute on the record each individual

5 argument or piece of evidence offered by the petitioner”). 

6 Finally, Samdup takes issue with the IJ’s finding that his

7 doctor’s affidavit and medical photographs were insufficient

8 to overcome the issues with his inconsistent testimony and

9 other corroborative evidence. However, as we have

10 previously found, where there are two permissible views of

11 the evidence, the fact-finder’s choice between them does not

12 suggest error. See Siewe v. Gonzales, 480 F.3d 160, 167 (2d

13 Cir. 2007).

14 The agency also did not err in failing to independently

15 assess Samdup’s CAT claim based solely on his status as an

16 ethnic Tibetan. We have recognized that an applicant whose

17 claims of past persecution were found not credible may

18 nevertheless establish eligibility for CAT relief through

19 objective evidence. See Paul v. Gonzales, 444 F.3d 148, 156

20 (2d Cir. 2006). However, even assuming that Samdup had

21 independently established his status as an ethnic Tibetan,

22 he failed to support his application with any State

23 Department Reports or other objective evidence of conditions

7
1 for ethnic Tibetans in China. We decline Samdup’s

2 invitation to take judicial notice of the relevant State

3 Department reports because our review is limited to the

4 administrative record. See Xiao Xing Ni v. Gonzales, 494

5 F.3d 260, 269 (2d Cir. 2007); 8 U.S.C. § 1252(b)(4)(A)

6 (providing that “the court of appeals shall decide the

7 petition only on the administrative record on which the

8 order of removal is based”). 

9 For the foregoing reasons, the petition for review is

10 DENIED. As we have completed our review, Samdup’s motion

11 for a stay of removal in this petition is DENIED as moot. 

12 Samdup’s request for oral argument is DENIED in accordance

13 with Federal Rule of Appellate Procedure 34(a)(2), and

14 Second Circuit Local Rule 34.1(b).

15 FOR THE COURT: 

16 Catherine O’Hagan Wolfe, Clerk

17

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