18

- 3762 Gurung v. Barr BIA Loprest , IJ A 208 192 814 

### 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 TO 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** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 17**  **th da**  **y of December**  **, two thousand twenty**  **.** 4 5 **PRESENT:** 6 **DENNIS JACOBS ,**  7 **JOSÉ A. CABRANES ,**  8 **DENNY CHIN ,**  9 **Circuit Judges.** 10

**_____________________________________** 11 12 **GOPAL JANG GURUNG ,**  13 **Petitioner ,**  14 15

**v. 18** 

**- 3762**  16 **NAC** 17 **WILLIAM P. BARR, UNITED STATES**  18 **ATTORNEY GENERAL ,**  19 **Respondent .**  20

**_____________________________________** 21 22 **FOR PETITIONER :**  Khagendra Gharti Chhetry , Esq. , 23 New York , NY

. 24 25 **FOR RESPONDENT:** Jeffrey Bossert Clark , Acting 26 Assistant Attorney General ; 27 Jessica E. Burns , Senior 282 Litigation Counsel ; Edward C. 1 Durant , Attorney, Office of 2 Immigration Litigation, United 3 States Department of Justice, 4 Washington, D C. 5 UPON DUE CONSIDERATION of this petition for review of a 6
Board of Immigration Appeals (“BIA”) decision, it is hereby 7
ORDERED, ADJUDGED, AND DECREED that the petitio n for review 8

is DENIED

. 9

Petitioner Gopal Jang Gurung , a native and citizen of 10

Nepal , seeks review of a November 29, 201 8 , decision of the 11

BIA affirming a n October 16, 2017 , decision of an Immigration 12
Judge (“IJ”) denying Gurung’s application for asylum, 13
withholding of removal, an d relief under the Convention 14
Against Torture (“CAT”). In re Gopal Jang Gurung , No. A 208 15

192 814 (B.I.A. Nov. 29, 201 8 ), aff’g No. A 208 192 814 16
(Immig. Ct. N.Y. City Oct. 16, 2017 ). We assume the parties’ 17
familiarity with the underlying facts and procedural history. 18
We have reviewed the IJ’s decision as modified by the 19

BIA. See Xue Hong Yang v . U.S. Dep’t of Justice , 426 F.3d 20
520, 522 (2d Cir. 2005). The applicable standards of review 21

are well established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei 22

Gao v. Sessions , 891 F.3d 67, 76 (2d Cir. 2018) ( reviewing 23
adverse credibility determination under a substantial 243 evidence standard)

. 1
“Considering the totality of the circumstances, and all 2
relevant factors, a trier of fact may base a credibility 3
determination on . . . the consistency between the applicant’s 4

or witness’s written and oral statements . . . , the internal 5
consistency of eac h such statement, the consistency of such 6
statements with other evidence of record . . . and any 7
inaccuracies or falsehoods in such statements, without regard 8
to whether an inconsistency, inaccuracy, or falsehood goes to 9
the heart of the applicant’s claim, or any other relevant 10

factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to 11
an IJ’s credibility determination unless, from the totality 12
of the circumstances, it is plain that no reasonable fact

13
finder could make such an adverse credibility ruling.” Xiu 14
Xia Lin v. Mukasey , 534 F.3d 162, 167 (2d Cir. 2008); accord 15
Hong Fei Gao , 891 F.3d at 76. 16

Here, the agency relied on four findings to support its 17
adverse credibility determination , one of which

— an 18
inconsistency regarding threats Gurung received

— was in error. 19
Regarding the number of threats Gurung received, t he IJ did 20
not consider that Gurung was answering a question 21
specifically about the time after he arrived in Kathmandu or 224 his later testimony on cross

- examination that he was 1

threaten ed a total of three times. S ee Hong Fei Gao , 891 2
F.3d at 76 (substantial evidence requires the findings be 3
“supported by reasonable, substantial and probative evidence 4
in the record when considered as a whole”). Despite this 5

error, the other three findings discussed below

— two 6

inconsistencies and one omission

— provide substantial evidence 7
for the adverse credibility determination. See Xiu Xia Lin , 8
534 F.3d at 167. Accordingly, remand for further 9

consideration would be futile. Lianping Li v. Lynch , 839 10

F.3d 144, 149

– 50 (2d Cir. 2016) (holding that remand may be 11

futile where error

- free findings provide substantial evidence 12
for the adverse credibility determination such that it is 13
clear the agency would reach the same decision on remand). 14

First, the agency reasonably relied on an inconsistency 15
regarding when Gurung joined the Nepali Congress Party 16
(“NCP”). Gurung testified he joined the NCP in the year 2070 17
of the Nepali calendar, or February 2014. H owever, h is 18

written statement states that he joined the NCP “in February 19

2013 (Magh 1969) ” and that his first encounter with the 20
Maoists occurred in January 2014. Gurung’s testimony that 21
he joined in February 2014 wa s also internally inconsistent 225 with his later te stimony that he started having problems with 1

Maoists prior to that time

. The agency’s reliance on this 2
inconsistency was reasonable as it concerned the central 3

issue of when he became politically active

. See 8 U.S.C. 4

§ 1158(b)(1)(B)(iii) ; Hong Fei Gao , 891 F.3d at 76

. 5

Second, the agenc y reasonably relied on inconsistent 6

accounts of where the second beating occurred. Gurung 7

alternately stated that Maoists beat him while he was taking 8

care of his goats in his village, or when he was 35 minutes 9
away from his house , or while he was in the jungle

. The IJ’s 10
reliance on this inconsistency was reasonable because it 11
related to the location of one of only two alleged beatings 12
and implicated questions about how his attackers located him 13

or whether there would have been witnesses. See Hong Fei 14

Gao , 891 F. 3d at 77; Xian Tuan Ye v. Dep’t of Homeland Sec. , 15
446 F.3d 289, 295 (2d Cir. 2006) (holding that “material 16
inconsistency in an aspect of [the] story that served as an 17
example of the very persecution from which [petitioner] 18

sought asylum . . . afforded subs tantial evidence to support 19
the adverse credibility finding” (internal citation and 20
quotation marks omitted)). Gurung’s current explanation that 21

he could not remember does not compel a contrary conclusion

. 226 See Majidi v. Gonzales , 430 F.3d 77, 80 (2d Cir. 2005) (“A 1
petitioner must do more than offer a plausible explanation 2

for his inconsistent statements to secure relief; he must 3

demonstrate that a reasonable fact

- finder would be compelled 4
to credit his testimony.” (internal quotation marks 5

omitted)). 6

Thi rd, the agency reasonably relied on Gurung’s 7

testimonial omission that Maoists beat his wife so badly that 8

she needed hospital treatmen t . G urung wrote in his statement 9

that Maoists “got fury and beat [his] wife very mercilessl y” 10
and neighbors took her to the hospital, but he omitted any 11
physical harm when testifying about this incident

— stating 12

only that they threatened her and demanded money. While 13

omissions are generally l ess probative than inconsistencies, 14
Gurung’s omission is essentially a different description of 15
a serious event and one that goes to the heart of his claim 16

that the Maoists continue to seek him out and would harm him 17

if he returned

. See Hong Fei Gao , 891 F.3d at 78

– 79 (to 18
assess probative value of omission, IJ should consider 19
whether reasonable, credible applicant would have disclosed 20

the information ). Because this incident went directly to his 21
fear of future harm, his explanation that it occurred after 227 h e left Nepal is not compelling, particularly as he deemed it 1
important enough to mention in his application. Majidi , 430 2

F.3d at 80

– 81. 3

Given these inconsistencies and the omission that relate 4
to the timing of Gurung’s political activities, the details 5
of one of two attacks, and whether his wife suffered physical 6
harm from people seeking him out, t he adverse credibility 7
determination is supported by substantial evidence. See 8

8 U.S.C

. § 1158(b)(1)(B)(iii) ; Xiu Xia Lin , 534 F.3d at 167. 9
The adverse credibility determination is dispositive of 10
asylum, withholding of removal, and CAT relief because all 11
three forms of relief are based on the same factual predicate. 12

See Paul v. Gon zales , 444 F.3d 148, 156

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

DENIED

. All pending motions and applications are DENIED and 15

stays VACATED. 16

FOR THE COURT: 17 Catherine O ’ Hagan Wolfe , 18 Clerk of Court 19 20