19

- 2019 Kumar v. Garland BIA Kolbe , IJ A 208 204 053 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 D ATABASE (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 for the Second 1 Circuit, held at the Thurgood Marshall Uni ted States Courthouse, 40 Foley 2 Square, in the City of New York, on the 9 th da y of March , two thousand twenty

3 t hree

. 4 5 PRESENT: 6 JOSÉ A. CABRANES, 7 SUSAN L. CARNEY, 8 RICHARD J. SULLIVAN, 9 Circuit Judges. 10

_____________________________________ 11 12 A MIL K UMAR , AKA A NIL K UMAR , AKA N IL 13 T HAPA , 14 15 Petitioner , 16 17

v. 19

- 2019 18 NAC 19 M ERRICK B. G ARLAND , U NITED S TATES 20 A TTORNEY G ENERAL , 21 22 Respondent

. 23

_____________________________________ 24 252 For Petitioner : Richard W. Chen, New York, NY. 1 2 For Respondent : Joseph H. Hunt , Acting Assistant Attorney 3 General ; Mary Jane Candaux , Assistant 4 Director; Edward E. Wiggers , Senior Litigation 5 Counsel , Office of Immigration Litigation, 6 United States Department of Justice, 7 Washington, D C. 8 UPON DUE CONSIDERATION of this petition for review of a Board of 9
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 10
DECREED that the petitio n for review is DENIED

. 11

Amil Kumar , a native and citizen of India , seeks review of a decision of the 12

BIA affirming a decision of an Immigration Judge (“IJ”) denying his application 13
for asylum, withholding of removal, and relief under the Convention Against 14
Torture (“CAT”)

. In re Amil Kumar , No. A 208 204 053 (B.I.A. June 10, 2019 ), aff’g 15

No. A 208 204 053 ( Immig r . Ct. N.Y. C. Jan. 9, 2018 ). We assume the parties’ 16
familiarity with the underlying facts and procedural history. 17

We have reviewed both the IJ’s and the BIA’s decisions “for the sake of 18
completeness.” Wangchuck v. Dep’t of Homeland Sec. , 448 F.3d 524, 528 (2d Cir. 19
2006). We review adverse

- credibility determinations for substantial evidence , see 20
Hong Fei Gao v. Sessions , 891 F.3d 67, 76 (2d Cir. 2018), and treat the agency’s 213 findings of fact as “conclusive unless any reasonable adjudicator would be 1
compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B). 2
“Considering the totality of the circumstances, and all relevant facts, a trier 3
of fact may base a credibility determination on the demeanor, candor, or 4
responsiveness of the applicant or witness,

. . . the consistency between the 5
applicant’s or witness’s written and oral statements

. . . , the internal consistency 6

of each such statement , the consistency of such statements with other evidence of 7

record

. . . , and any inaccuracies or falsehoods in such statements, without regard 8
to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the 9
applicant’s claim , or any other relevant factor .” 8 U.S.C. § 1158(b)(1)(B)(iii). “We 10

defer

. . . to an IJ’s credibility determination unless, from the totality of the 11
circumstances, it is plain that no reasonable fact

- finder could make such an 12
adverse credibility ruling.” Xiu Xia Lin v. Mukasey , 534 F.3d 162, 167 (2d Cir. 13
2008). 14

Substantial eviden ce supports the agency’s adverse

- credibility 15
determination. Kumar alleged that followers of Baba Rampal assaulted him 16
because he is Sikh and threatened to kill him if he did not join their Hindu sect. 17

But h e gave inconsistent descriptions of how he becam e

– or was becoming

– Sikh , 184 telling the asylum officer he was registered as Hindu and in the process of 1
converting to Sikhism, but later testifying in front of the IJ that he became Sikh 2
through his father

. Although he now argues on appeal that the agency 3
misunderstood the process of becoming Sikh, it was his burden to clarify that 4
process for the agency , which he did not do when confronted with the 5
inconsistency during his hearing

. See 8 U.S.C. § 1158(b)(1)(B)(i) (placing burden 6
of proof on asylum applicant); see also Majidi v. Gonzales , 430 F.3d 77, 80 (2d Cir. 7
2005) (“A petitioner must do more than offer a plausible explanation for his 8

inconsistent statements to secure relief; he must demonstrate that a reasonable 9

fact

- finder would be compelled to credit his testimony.” ( internal quotation marks 10
omitted) )

. 11
Similarly, Kumar was inconsistent about who took him to the doctor 12
following alleged attacks by Baba Rampal followers

. Kumar testif ied that his 13

mother and uncle took him after the first attac k , and that his mother took him after 14

the second ; h owever , his written statement reflected that only his uncle took him 15

after both attacks. H is expla nation that his uncle drove because his mother does 16

not driv e does not resolve why he gave these different descriptions

. See Majidi , 17

430 F.3d at 80. 185 T he agency also reasonably concluded that Kumar’s documentary evidence 1
further undermined his credibility. See Biao Yang v. Gonzales , 496 F.3d 268, 273 2
(2d Cir. 2007 ) ( “An applicant’s failure to corroborate his or her testimony may bear 3
on credibility, because the absence of corroboration in general makes an applicant 4
unable to rehabilitate testimony that has already been called into question.”). 5

Affidavits from Kumar’s mother, brother, and uncle attesting to the beatings all 6
contained nearly identical language, as well as the same typographical errors, thus 7
undermining rather than corroborating his claim. See Singh v. BIA , 438 F.3d 145, 8
148 (2d Cir. 2006) (upholding ag ency’s reliance on “nearly identical language in 9
the written affidavits allegedly provided by different people in India” as a basis 10

for an adverse

- credibility determination). Kumar claims that the similarities in 11
the affidavits are attributable the notary his family members used, but, once again, 12
the agency was not compelled to accept this explanation. See Majidi , 430 F.3d at 13

80

. 14
Finally, t he agency’s adverse

- credibility determination is further bolstered 15
by the IJ’s demeanor finding. We give “ particular deference” to an IJ’s demeanor 16
finding because the IJ is “in the best position to evaluate whether apparent 17
problems in the .

. . testimony suggest a lack of credibility or, rather, can be 186 attri buted to an innocent cause such as difficulty understanding the question.” Li 1
Hua Lin v. U.S. Dep’t of Justice , 453 F.3d 99, 109 (2d Cir. 2006) ( internal quotation 2
marks omitted). Here, the record reflects that Kumar was not responsive when 3
questioned ab out potential inconsistencies , and the agency was not required to 4
conclude that Kumar was a “naturally poor witness

. ” Kumar Br. at 17; s ee Yun

5

Zui Guan v. Gonzales , 432 F.3d 391, 397 n.6 (2d Cir. 2005) (explaining that “an alien’s 6

mere recitation that he was nervous” does not “automatically prevent the IJ or 7
BIA” from relying on inconsistent statements)

. 8

In sum, the inconsistencies, lack of reliable corroboration , and demeanor 9
finding constitute substantial evidence for the agency’s adverse

- credibility 10

determination. And t he adverse

- credibility determination is dispositive of 11
asylum, withholding of removal, and CAT relief because all three claims are based 12
on the same factual predicat e. See Paul v. Gonzales , 444 F.3d 148, 156

– 57 (2d Cir. 13
2006). 14
For the foregoing reasons, the petition for review is DENIED

. All pending 15
motions and applications are DENIED and stays VACATED. 16

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