19-2019

Kumar v. Garland

BIA

Kolbe, IJ

A208 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 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 for the Second 

2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 

Square, in the City of New York, on the 9 3 th day of March, two thousand twenty4 three. 5

6 PRESENT:

7 JOSÉ A. CABRANES,

8 SUSAN L. CARNEY,

9 RICHARD J. SULLIVAN,

10 Circuit Judges.

11 _____________________________________

12

13 AMIL KUMAR, AKA ANIL KUMAR, AKA NIL 

14 THAPA, 15

16 Petitioner,

17

18 v. 19-2019

19 NAC

20 MERRICK B. GARLAND, UNITED STATES 

21 ATTORNEY GENERAL, 22

23 Respondent.

24 _____________________________________

25
2

1 For Petitioner: Richard W. Chen, New York, NY.

2

3 For Respondent: Joseph H. Hunt, Acting Assistant Attorney 

4 General; Mary Jane Candaux, Assistant 

5 Director; Edward E. Wiggers, Senior Litigation 

6 Counsel, Office of Immigration Litigation, 

7 United States Department of Justice, 

8 Washington, DC.

9 UPON DUE CONSIDERATION of this petition for review of a Board of 

10 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 

11 DECREED that the petition for review is DENIED.

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

13 BIA affirming a decision of an Immigration Judge (“IJ”) denying his application 

14 for asylum, withholding of removal, and relief under the Convention Against 

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

16 No. A 208 204 053 (Immigr. Ct. N.Y.C. Jan. 9, 2018). We assume the parties’ 

17 familiarity with the underlying facts and procedural history.

18 We have reviewed both the IJ’s and the BIA’s decisions “for the sake of 

19 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 

20 2006). We review adverse-credibility determinations for substantial evidence, see

21 Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018), and treat the agency’s 
3

1 findings of fact as “conclusive unless any reasonable adjudicator would be 

2 compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B). 

3 “Considering the totality of the circumstances, and all relevant facts, a trier 

4 of fact may base a credibility determination on the demeanor, candor, or 

5 responsiveness of the applicant or witness, . . . the consistency between the 

6 applicant’s or witness’s written and oral statements . . . , the internal consistency 

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

8 record . . . , and any inaccuracies or falsehoods in such statements, without regard 

9 to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the 

10 applicant’s claim, or any other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We 

11 defer . . . to an IJ’s credibility determination unless, from the totality of the 

12 circumstances, it is plain that no reasonable fact-finder could make such an 

13 adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 

14 2008).

15 Substantial evidence supports the agency’s adverse-credibility 

16 determination. Kumar alleged that followers of Baba Rampal assaulted him 

17 because he is Sikh and threatened to kill him if he did not join their Hindu sect. 

18 But he gave inconsistent descriptions of how he became – or was becoming – Sikh, 
4

1 telling the asylum officer he was registered as Hindu and in the process of 

2 converting to Sikhism, but later testifying in front of the IJ that he became Sikh

3 through his father. Although he now argues on appeal that the agency 

4 misunderstood the process of becoming Sikh, it was his burden to clarify that 

5 process for the agency, which he did not do when confronted with the 

6 inconsistency during his hearing. See 8 U.S.C. § 1158(b)(1)(B)(i) (placing burden 

7 of proof on asylum applicant); see also Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 

8 2005) (“A petitioner must do more than offer a plausible explanation for his 

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

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

11 omitted)). 

12 Similarly, Kumar was inconsistent about who took him to the doctor 

13 following alleged attacks by Baba Rampal followers. Kumar testified that his 

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

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

16 after both attacks. His explanation that his uncle drove because his mother does 

17 not drive does not resolve why he gave these different descriptions. See Majidi, 

18 430 F.3d at 80. 
5

1 The agency also reasonably concluded that Kumar’s documentary evidence 

2 further undermined his credibility. See Biao Yang v. Gonzales, 496 F.3d 268, 273 

3 (2d Cir. 2007) (“An applicant’s failure to corroborate his or her testimony may bear 

4 on credibility, because the absence of corroboration in general makes an applicant 

5 unable to rehabilitate testimony that has already been called into question.”). 

6 Affidavits from Kumar’s mother, brother, and uncle attesting to the beatings all 

7 contained nearly identical language, as well as the same typographical errors, thus 

8 undermining rather than corroborating his claim. See Singh v. BIA, 438 F.3d 145, 

9 148 (2d Cir. 2006) (upholding agency’s reliance on “nearly identical language in 

10 the written affidavits allegedly provided by different people in India” as a basis 

11 for an adverse-credibility determination). Kumar claims that the similarities in 

12 the affidavits are attributable the notary his family members used, but, once again, 

13 the agency was not compelled to accept this explanation. See Majidi, 430 F.3d at 

14 80.

15 Finally, the agency’s adverse-credibility determination is further bolstered 

16 by the IJ’s demeanor finding. We give “particular deference” to an IJ’s demeanor 

17 finding because the IJ is “in the best position to evaluate whether apparent 

18 problems in the . . . testimony suggest a lack of credibility or, rather, can be 
6

1 attributed to an innocent cause such as difficulty understanding the question.” Li 

2 Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006) (internal quotation 

3 marks omitted). Here, the record reflects that Kumar was not responsive when 

4 questioned about potential inconsistencies, and the agency was not required to 

5 conclude that Kumar was a “naturally poor witness.” Kumar Br. at 17; see Yun6 Zui Guan v. Gonzales, 432 F.3d 391, 397 n.6 (2d Cir. 2005) (explaining that “an alien’s 

7 mere recitation that he was nervous” does not “automatically prevent the IJ or 

8 BIA” from relying on inconsistent statements).

9 In sum, the inconsistencies, lack of reliable corroboration, and demeanor 

10 finding constitute substantial evidence for the agency’s adverse-credibility 

11 determination. And the adverse-credibility determination is dispositive of 

12 asylum, withholding of removal, and CAT relief because all three claims are based 

13 on the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 

14 2006).

15 For the foregoing reasons, the petition for review is DENIED. All pending 

16 motions and applications are DENIED and stays VACATED.

17 FOR THE COURT: 

18 Catherine O’Hagan Wolfe,

19 Clerk of Court