16-2816 

Lama v. Sessions 

BIA 

Poczter, IJ 

A206 567 088 

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.

1 At a stated term of the United States Court of Appeals 

2 for the Second Circuit, held at the Thurgood Marshall 

3 United States Courthouse, 40 Foley Square, in the City of 

New York, on the 24th 4 day of April, two thousand eighteen. 

5 

6 PRESENT: 

7 JOHN M. WALKER, JR.,

8 DENNIS JACOBS, 

9 DEBRA ANN LIVINGSTON,

10 Circuit Judges. 

11 _____________________________________ 

12 

13 BIR BAHADUR LAMA, 

14 Petitioner, 

15 

16 v. 16-2816 

17 NAC 

18 

19 JEFFERSON B. SESSIONS III, 

20 UNITED STATES ATTORNEY GENERAL, 

21 Respondent. 

22 _____________________________________ 

23 

24 FOR PETITIONER: Stuart Altman, New York, NY. 

25 

26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 

27 Attorney General; Erica B. Miles, 

28 Senior Litigation Counsel; Enitan 

29 O. Otunla, Trial Attorney, Office 

30 of Immigration Litigation, United 

31 States Department of Justice, 

32 Washington, DC. 
2 

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 Bir Bahadur Lama, a native and citizen of 

6 Nepal, seeks review of a July 29, 2016, decision of the BIA 

7 affirming a June 15, 2015, decision of an Immigration Judge 

8 (“IJ”) denying Lama’s application for asylum, withholding 

9 of removal, and relief under the Convention Against Torture 

10 (“CAT”). In re Bir Bahadur Lama, No. A206 567 088 (B.I.A. 

11 July 29, 2016), aff’g No. A206 567 088 (Immig. Ct. N.Y. 

12 City June 15, 2015). We assume the parties’ familiarity 

13 with the underlying facts and procedural history in this 

14 case. 

15 Under the circumstances of this case, we have reviewed 

16 the IJ’s decision as modified by the BIA, i.e., excluding 

17 the IJ’s internal relocation finding and reliance on Lama’s 

18 asylum interview. See Xue Hong Yang v. U.S. Dep’t of 

19 Justice, 426 F.3d 520, 522 (2d Cir. 2005). The applicable 

20 standards of review are well established. See 8 U.S.C. 

21 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-

22 66 (2d Cir. 2008). 
3 

1 The governing REAL ID Act credibility standard provides 

2 that the agency must “[c]onsider[] the totality of the 

3 circumstances,” and may base a credibility finding on an 

4 applicant’s “demeanor, candor, or responsiveness,” the 

5 plausibility of his account, and inconsistencies or 

6 omissions in his or his witness’s statements, “without 

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

8 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 

9 F.3d at 163-64, 166-67. “A petitioner must do more than 

10 offer a plausible explanation for his inconsistent 

11 statements to secure relief; he must demonstrate that a 

12 reasonable fact-finder would be compelled to credit his 

13 testimony.” Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 

14 2005) (internal quotation marks and emphasis omitted). “We 

15 defer . . . to an IJ’s credibility determination unless . . 

16 . it is plain that no reasonable fact-finder could make 

17 such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d 

18 at 167. For the reasons that follow, we conclude that 

19 substantial evidence supports the agency’s finding that 

20 Lama was not credible. 

21 The agency reasonably based the credibility 

22 determination on Lama’s internally inconsistent testimony 
4 

1 and inconsistency between his testimony and evidence about 

2 when his father registered his wife’s death, particularly 

3 as his wife’s death was central to his claim that he was 

4 targeted by Maoists. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu 

5 Xia Lin, 534 F.3d at 167 (“[A]n IJ may rely on any

6 inconsistency . . . in making an adverse credibility 

7 determination as long as the ‘totality of the 

8 circumstances’ establishes that an asylum applicant is not 

9 credible.”). Lama initially testified that his father 

10 reported his wife’s death when she died, but later 

11 testified that his father did not. Lama’s explanation—that 

12 his father initially just informed the village development 

13 committee about the death—did not explain his inconsistent 

14 testimony or clarify when the death was reported. In 

15 addition, although Lama testified that his father obtained 

16 his wife’s death certificate, the certificate itself 

17 reflects that Lama provided the information on which it was 

18 based. Lama’s explanation that his name appeared on the 

19 death certificate only because he was the husband was not 

20 compelling and also conflicted with the certificate. 

21 The agency also reasonably relied on an omission from 

22 Lama’s application, direct testimony, and father’s letter 
5 

1 that Maoists threatened him through his father not to 

2 report his wife’s death. See Xiu Xia Lin, 534 F.3d at 166-

3 67 & n.3 (“An inconsistency and an omission 

4 are . . . functionally equivalent” for credibility 

5 purposes.). The agency was not required to credit Lama’s 

6 explanations—that he omitted the threat because it was made 

7 to his father and that his father did not know to mention 

8 it in his letter—because Lama included other indirect 

9 threats in his application and his father’s letter 

10 mentioned relaying other threats. See Majidi, 430 F.3d at 

11 80 (“A petitioner must do more than offer a plausible 

12 explanation for his inconsistent statements to secure 

13 relief, he must demonstrate that a reasonable fact-finder 

14 would be compelled to credit his testimony (internal 

15 quotation marks omitted)). 

16 Finally, the credibility determination is bolstered by 

17 the IJ’s observations of Lama’s demeanor and the absence of 

18 sufficient corroborating evidence to rehabilitate his 

19 testimony. See Chen v. U.S. Dep’t of Justice, 426 F.3d 104 

20 (2d Cir. 2005) (“We give particular deference to 

21 credibility determinations that are based on the 

22 adjudicator’s observation of the applicant’s demeanor . . . 
6 

1 .”); Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 

2 2007) (”An applicant’s failure to corroborate his or her 

3 testimony may bear on credibility . . . .”). The IJ’s 

4 observation that Lama was nonresponsive and unwilling to 

5 answer when confronted with inconsistencies on cross6 examination is reflected in the record, as evidenced by the 

7 number of questions the government attorney had to ask to 

8 learn how and when Lama obtained the death certificate. 

9 See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 

10 (2d Cir. 2006) (“We can be still more confident in our 

11 review of observations about an applicant’s demeanor where, 

12 as here, they are supported by specific examples of 

13 inconsistent testimony.”). 

14 While Lama faults the IJ for ignoring corroborating 

15 evidence, including his father’s letter and wife’s death 

16 certificate, the record reflects the opposite. The IJ 

17 explicitly considered the death certificate and Lama’s 

18 father’s letter but, as noted above, discrepancies between 

19 this evidence and Lama’s testimony created, rather than 

20 resolved, credibility issues. And while the IJ did not 

21 explicitly mention Lama’s medical records and letters from 

22 the Nepali Congress Party and Maoists, the IJ stated that 
7 

1 she had considered all of the documents. Wei Guang Wang v. 

2 Bd. of Immigration Appeals, 437 F.3d 270, 275 (2d Cir. 

3 2006) (noting that the agency need not “expressly parse or 

4 refute on the record each individual argument or piece of 

5 evidence offered by the petitioner” (internal quotation 

6 marks omitted)). Given other credibility problems, the 

7 agency reasonably concluded that these documents did not 

8 rehabilitate his testimony. See Y.C. v. Holder, 741 F.3d 

9 324, 332 (2d Cir. 2013) (“We generally defer to the 

10 agency’s evaluation of the weight to be afforded an 

11 applicant’s documentary evidence.”). 

12 Given the foregoing inconsistency, omission, demeanor, 

13 and corroboration findings, we conclude that the adverse 

14 credibility determination is supported by the “totality of 

15 the circumstances.” Xiu Xia Lin, 534 F.3d at 167. 

16 Contrary to Lama’s position, the credibility determination 

17 is dispositive of asylum, withholding of removal, and CAT 

18 relief because all three claims are based on the same 

19 factual predicate. See Paul v. Gonzales, 444 F.3d 148, 

20 156-57 (2d Cir. 2006). 

21 For the foregoing reasons, the petition for review is 

22 DENIED. As we have completed our review, any stay of removal 
8 

1 that the Court previously granted in this petition is VACATED, 

2 and any pending motion for a stay of removal in this petition 

3 is DISMISSED as moot. Any pending request for oral argument 

4 in this petition is DENIED in accordance with Federal Rule of 

5 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 

6 34.1(b). 

7 FOR THE COURT: 

8 Catherine O’Hagan Wolfe, Clerk of Court