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.**  **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 24 th**  **day of April, two thousand eighteen.** 4 5 **PRESENT:** 6 **JOHN M. WALKER, JR.,** 7 **DENNIS JACOBS,** 8 **DEBRA ANN LIVINGSTON,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **BIR BAHADUR LAMA,** 13 Petitioner **,** 14 15 **v. 16-2816** 16 **NAC** 17 18 **JEFFERSON B. SESSIONS III,** 19 **UNITED STATES ATTORNEY GENERAL,** 20 Respondent **.** 21

**_____________________________________** 22 23 **FOR PETITIONER:** Stuart Altman, New York, NY. 24 25 **FOR RESPONDENT:** Chad A. Readler, Acting Assistant 26 Attorney General; Erica B. Miles, 27 Senior Litigation Counsel; Enitan 28 O. Otunla, Trial Attorney, Office 29 of Immigration Litigation, United 30 States Department of Justice, 31 Washington, DC. 322 UPON 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 Bir Bahadur Lama, a native and citizen of 5 Nepal, seeks review of a July 29, 2016, decision of the BIA 6 affirming a June 15, 2015, decision of an Immigration Judge 7 (“IJ”) denying Lama’s application for asylum, withholding 8 of removal, and relief under the Convention Against Torture 9 (“CAT”). In re Bir Bahadur Lama, No. A206 567 088 (B.I.A. 10 July 29, 2016), aff’g No. A206 567 088 (Immig. Ct. N.Y. 11 City June 15, 2015). We assume the parties’ familiarity 12 with the underlying facts and procedural history in this 13

case. 14 Under the circumstances of this case, we have reviewed 15 the IJ’s decision as modified by the BIA, i.e., excluding 16 the IJ’s internal relocation finding and reliance on Lama’s 17 asylum interview. See Xue Hong Yang v. U.S. Dep’t of 18 Justice , 426 F.3d 520, 522 (2d Cir. 2005)

. The applicable 19 standards of review are well established. See 8 U.S.C. 20 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey , 534 F.3d 162, 165- 21 66 (2d Cir. 2008). 223 The governing REAL ID Act credibility standard provides 1 that the agency must “[c]onsider[] the totality of the 2 circumstances,” and may base a credibility finding on an 3 applicant’s “demeanor, candor, or responsiveness,” the 4 plausibility of his account, and inconsistencies or 5 omissions in his or his witness’s statements, “without 6 regard to whether” they go “to the heart of the applicant’s 7 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 8 F.3d at 163-64, 166-67. “A petitioner must do more than 9 offer a plausible explanation for his inconsistent 10 statements to secure relief; he must demonstrate that a 11 reasonable fact-finder would be compelled to credit his 12 testimony.” Majidi v. Gonzales , 430 F.3d 77, 80 (2d Cir. 13 2005) (internal quotation marks and emphasis omitted). “We 14 defer . . . to an IJ’s credibility determination unless . . 15 . it is plain that no reasonable fact-finder could make 16 such an adverse credibility ruling.” Xiu Xia Lin , 534 F.3d 17 at 167. For the reasons that follow, we conclude that 18 substantial evidence supports the agency’s finding that 19 Lama was not credible. 20 The agency reasonably based the credibility 21 determination on Lama’s internally inconsistent testimony 224 and inconsistency between his testimony and evidence about 1 when his father registered his wife’s death, particularly 2 as his wife’s death was central to his claim that he was 3 targeted by Maoists. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu 4 Xia Lin , 534 F.3d at 167 (“[A]n IJ may rely on any 5 inconsistency . . . in making an adverse credibility 6 determination as long as the ‘totality of the 7 circumstances’ establishes that an asylum applicant is not 8 credible.”). Lama initially testified that his father 9 reported his wife’s death when she died, but later 10 testified that his father did not. Lama’s explanation—that 11 his father initially just informed the village development 12 committee about the death—did not explain his inconsistent 13 testimony or clarify when the death was reported. In 14 addition, although Lama testified that his father obtained 15 his wife’s death certificate, the certificate itself 16 reflects that Lama provided the information on which it was 17 based. Lama’s explanation that his name appeared on the 18 death certificate only because he was the husband was not 19 compelling and also conflicted with the certificate. 20 The agency also reasonably relied on an omission from 21 Lama’s application, direct testimony, and father’s letter 225 that Maoists threatened him through his father not to 1 report his wife’s death. See Xiu Xia Lin , 534 F.3d at 166- 2 67 & n.3 (“An inconsistency and an omission 3 are . . . functionally equivalent” for credibility 4 purposes.). The agency was not required to credit Lama’s 5 explanations—that he omitted the threat because it was made 6 to his father and that his father did not know to mention 7 it in his letter—because Lama included other indirect 8 threats in his application and his father’s letter 9 mentioned relaying other threats. See Majidi , 430 F.3d at 10 80 (“A petitioner must do more than offer a plausible 11 explanation for his inconsistent statements to secure 12 relief, he must demonstrate that a reasonable fact-finder 13 would be compelled to credit his testimony (internal 14 quotation marks omitted)). 15 Finally, the credibility determination is bolstered by 16 the IJ’s observations of Lama’s demeanor and the absence of 17 sufficient corroborating evidence to rehabilitate his 18 testimony. See Chen v. U.S. Dep’t of Justice , 426 F.3d 104 19 (2d Cir. 2005) (“We give particular deference to 20 credibility determinations that are based on the 21 adjudicator’s observation of the applicant’s demeanor . . . 226 .”); Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 1 2007) (”An applicant’s failure to corroborate his or her 2 testimony may bear on credibility . . . .”). The IJ’s 3 observation that Lama was nonresponsive and unwilling to 4 answer when confronted with inconsistencies on cross5 examination is reflected in the record, as evidenced by the 6 number of questions the government attorney had to ask to 7 learn how and when Lama obtained the death certificate. 8
See Li Hua Lin v. U.S. Dep’t of Justice , 453 F.3d 99, 109 9 (2d Cir. 2006) (“We can be still more confident in our 10 review of observations about an applicant’s demeanor where, 11 as here, they are supported by specific examples of 12 inconsistent testimony.”). 13 While Lama faults the IJ for ignoring corroborating 14 evidence, including his father’s letter and wife’s death 15 certificate, the record reflects the opposite. The IJ 16 explicitly considered the death certificate and Lama’s 17 father’s letter but, as noted above, discrepancies between 18 this evidence and Lama’s testimony created, rather than 19 resolved, credibility issues. And while the IJ did not 20 explicitly mention Lama’s medical records and letters from 21 the Nepali Congress Party and Maoists, the IJ stated that 227 she had considered all of the documents. Wei Guang Wang v. 1 Bd. of Immigration Appeals , 437 F.3d 270, 275 (2d Cir. 2 2006) (noting that the agency need not “expressly parse or 3 refute on the record each individual argument or piece of 4 evidence offered by the petitioner” (internal quotation 5 marks omitted)). Given other credibility problems, the 6 agency reasonably concluded that these documents did not 7 rehabilitate his testimony. See Y.C. v. Holder , 741 F.3d 8 324, 332 (2d Cir. 2013) (“We generally defer to the 9 agency’s evaluation of the weight to be afforded an 10 applicant’s documentary evidence.”). 11 Given the foregoing inconsistency, omission, demeanor, 12 and corroboration findings, we conclude that the adverse 13 credibility determination is supported by the “totality of 14 the circumstances.” Xiu Xia Lin , 534 F.3d at 167. 15 Contrary to Lama’s position, the credibility determination 16 is dispositive of asylum, withholding of removal, and CAT 17 relief because all three claims are based on the same 18 factual predicate. See Paul v. Gonzales , 444 F.3d 148, 19 156-57 (2d Cir. 2006). 20 For the foregoing reasons, the petition for review is 21 DENIED. As we have completed our rev iew, any stay of removal 228 that the Court previously granted in this petition is VACATED, 1 and any pending motion for a stay of removal in this petition 2 is DISMISSED as moot. Any pending request for oral argument 3 in this petition is DENIED in accordance with Federal Rule of 4 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 5 34.1(b). 6
FOR THE COURT: 7 Catherine O’Hagan Wolfe, Clerk of Court 8