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.**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 13 th** **day of March, two thousand fourteen.** 4 5 **PRESENT:** 6 **JOSÉ A. CABRANES,** 7 **GERARD E. LYNCH,** 8 **CHRISTOPHER F. DRONEY,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **KUNCHOK SAMDUP,** 13 Petitioner**,** 14 15 **v. 12-1833** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**_______________________________________** 21 22 **FOR PETITIONER: Steven J. Kolleeny, New York, NY.** 23 24 **FOR RESPONDENT: Stuart F. Delery, Assistant Attorney** 25 **General; Lyle D. Jentzer, Senior** 26 **Litigation Counsel; Paul F. Stone,** 27 **Trial Attorney, Office of** 28 **Immigration Litigation, United** 29 **States Department of Justice,** 30 **Washington, D.C.** 31UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DENIED. 4 Petitioner Kunchok Samdup, an alleged native of Tibet 5 and citizen of China, seeks review of an April 5, 2012, 6 order of the BIA, affirming the March 31, 2011, decision of 7 an Immigration Judge (“IJ”), which denied asylum, 8 withholding of removal, and relief under the Convention 9 Against Torture (“CAT”). In re Kunchok Samdup, No. A087 469 10 108 (B.I.A. Apr. 5, 2012), aff’gNo. A087 469 108 (Immig. 11 Ct. New York City Mar. 31, 2011). We assume the parties’ 12 familiarity with the underlying facts and procedural history 13 in this case. 14 Under the circumstances of this case, we review the 15 decisions of both the IJ and the BIA.See Yun-Zui Guan v. 16 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam). 17 The applicable standards of review are well established. 18

See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. 19 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam). 20 For applications such as Samdup’s, which are governed 21 by the REAL ID Act, the agency may base a credibility 22 finding on an applicant’s demeanor, the plausibility of his 23
2account, and inconsistencies in his statements, without 1 regard to whether they go “to the heart of the applicant’s 2 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). We “defer to an 3 IJ’s credibility determination unless, from the totality of 4 the circumstances, it is plain that no reasonable 5 fact-finder could make such an adverse credibility ruling.” 6 Xiu Xia Lin, 534 F.3d at 167. 7 Samdup does not challenge the agency’s finding that he 8 testified inconsistently with his application concerning the 9 length of his father’s detention and whether he had hung 10 pro-Tibetan posters in 2002. Instead, he contends that 11 these inconsistencies were an improper basis for the IJ’s 12 credibility determination because they are not material to 13 his claim. Under the REAL ID Act, however, an IJ may rely 14 on inconsistencies that are “not directly material” to an 15 applicant’s claim where “the cumulative effect of those 16 inconsistencies reasonably could have affected the IJ’s 17 [credibility] evaluation.” Xiu Xia Lin, 534 F.3d at 167. 18 Moreover, the IJ’s credibility determination was not 19 exclusively based on these inconsistencies and was further 20 buttressed by the insufficiency of Samdup’s corroborative 21 evidence and the omission of his high blood pressure and 22

3blood sugar, which he testified was caused by his 1 mistreatment in China, from his doctor’s affidavit. 2 Samdup’s assertion that the agency improperly relied on the 3 omission from his doctor’s affidavit, because omissions are 4 treated differently than inconsistencies for the purpose of 5 the credibility finding, is incorrect. See Xiu Xia Lin, 534 6 F.3d at 166 (providing that, for purposes of analyzing a 7 credibility determination, “[a]n inconsistency and an 8 omission are . . . functionally equivalent”). Accordingly, 9 Samdup has failed to show that the identified 10 inconsistencies and omission were an improper basis for the 11 IJ’s adverse credibility determination. See Xiu Xia Lin, 12 534 F.3d at 167; see also Tu Lin v. Gonzales , 446 F.3d 395, 13 402 (2d Cir. 2006). 14 Having called Samdup’s credibility into question, the 15 agency reasonably determined that his failure to present 16 sufficient corroborative evidence further undermined his 17 credibility. See 8 U.S.C. § 1158(b)(1)(B)(ii) (providing 18 that “[t]he testimony of the applicant may be sufficient to 19 sustain the applicant’s burden without corroboration,but 20 only if the applicant satisfies the trier of fact that the 21 applicant’s testimony is credible, is persuasive, and refers 22

4to specific facts sufficient to demonstrate that the 1 applicant is a refugee” (emphasis added));see also Xiao Ji 2 Chen v. US Dep’t of Justice , 471 F.3d 315, 342 (2d Cir. 3 2006) (noting that the weight accorded to the applicant’s 4 evidence lies largely within the discretion of the agency). 5 We have recognized that an applicant’s failure to 6 corroborate his testimony may bear on credibility, either 7 because the absence of particular corroborating evidence is 8 viewed as suspicious, or because the absence of 9 corroboration makes an applicant unable to rehabilitate 10 testimony that has already been called into question. See 11 Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 2007) (per 12 curiam). 13 Contrary to Samdup’s assertion, the agency did not err 14 in according his uncle and brother’s letters diminished 15 weight because they were from interested witnesses not 16 subject to cross examination. See Matter of H-L-H- & 17

Z-Y-Z- , 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (rejecting 18 letters from applicant’s relatives and friends because they 19 were “interested witnesses not subject to 20 cross-examination”), overruled in part on other grounds by 21 Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012). In 22 any event, Samdup fails to challenge the agency’s 23 5determination that these letters were insufficient to 1 rehabilitate his credibility because they omitted any 2 reference to his father’s detention and related death. 3 Samdup also asserts that the agency erred in according the 4 one-page translation of his 1997 household registry 5 diminished weight. However, he fails to challenge the 6 agency’s finding that the registry’s listing of his sibling 7 as the head of household contradicted his testimony that his 8 father had died from his detention related injuries in 2001 9 and, therefore, did not rehabilitate his credibility. The 10 agency also did not err in declining to credit Samdup’s 11 letters from the Office of Tibet and Tibetan Tehor 12 Association, which indicated that he was a Tibetan refugee, 13 because Samdup failed to submit the underlying documentation 14 upon which the letters’ representation of Tibetan refugee 15 status was based. Xiao Ji Chen, 471 F.3d at 342. 16 Similarly, contrary to Samdup’s assertion, the agency’s 17 failure to explicitly discuss his letter from the NYU 18 Program for Survivors of Torture does not compellingly 19 suggest that it was ignored because the letter merely 20 indicated, without elaboration, that Samdup had been 21 admitted to the program. See Xiao Ji Chen, 471 F.3d at 337 22 n.17 (presuming that the agency “has taken into account all 23 6of the evidence before [it], unless the record compellingly 1 suggests otherwise”);Zhi Yun Gao v. Mukasey, 508 F.3d 86, 2 87 (2d Cir. 2007) (noting that the agency is not required to 3 expressly “parse or refute on the record each individual 4 argument or piece of evidence offered by the petitioner”). 5 Finally, Samdup takes issue with the IJ’s finding that his 6 doctor’s affidavit and medical photographs were insufficient 7 to overcome the issues with his inconsistent testimony and 8 other corroborative evidence. However, as we have 9 previously found, where there are two permissible views of 10 the evidence, the fact-finder’s choice between them does not 11 suggest error. See Siewe v. Gonzales , 480 F.3d 160, 167 (2d 12 Cir. 2007). 13 The agency also did not err in failing to independently 14 assess Samdup’s CAT claim based solely on his status as an 15 ethnic Tibetan. We have recognized that an applicant whose 16 claims of past persecution were found not credible may 17 nevertheless establish eligibility for CAT relief through 18 objective evidence. See Paul v. Gonzales , 444 F.3d 148, 156 19 (2d Cir. 2006). However, even assuming that Samdup had 20 independently established his status as an ethnic Tibetan, 21 he failed to support his application with any State 22 Department Reports or other objective evidence of conditions 23 7for ethnic Tibetans in China. We decline Samdup’s 1 invitation to take judicial notice of the relevant State 2 Department reports because our review is limited to the 3 administrative record.See Xiao Xing Ni v. Gonzales , 494 4 F.3d 260, 269 (2d Cir. 2007); 8 U.S.C. § 1252(b)(4)(A) 5 (providing that “the court of appeals shall decide the 6 petition only on the administrative record on which the 7 order of removal is based”). 8 For the foregoing reasons, the petition for review is 9 DENIED. As we have completed our review, Samdup’s motion 10 for a stay of removal in this petition is DENIED as moot. 11 Samdup’s request for oral argument is DENIED in accordance 12 with Federal Rule of Appellate Procedure 34(a)(2), and 13 Second Circuit Local Rule 34.1(b). 14

FOR THE COURT: 15 Catherine O’Hagan Wolfe, Clerk 16 17 18

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