18

- 2778 Darji v. Wilkinson BIA Wright , IJ A205 727 174 

### 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**  **ELE CTRONIC 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 United** 2 **States Courthouse, 40 Foley Square, in the City of New York,**  3 **on the 2**  **5 t**  **h d**  **a y of**  **J a**  **n u**  **ary , two thousand**  **twenty -**  **o n**  **e .**  4 5 **PRESENT:** 6 **DEBRA ANN LIVINGSTON,** 7 **Chief Judge ,**  8 **PIERRE N. LEVAL ,**  9 **RICHARD J. SULLIVAN,** 10 **Circuit Judges.** 11

**_____________________________________** 12 13 **MADHAV DARJI ,**  14 **Petitioner ,**  15 16
**v. 18** 
**- 2**  **778** 17 **NAC** 18 **M O**  **N T**  **Y W**  **I L**  **K I**  **N S**  **O N**  **, ACTING** 19 **UNITED STATES ATTORNEY GENERAL**  **,** 20 **Respondent .**  ***** 21

**_____________________________________** 22 23 24 **FOR P**  **ETITIONER :**  Jason Schaffer, Esq., New York , 25 NY. 26 27

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General Monty Wilkinson is automatically substituted for former Acting Attorney General Jeffrey A. Rosen as Respondent.2 **FOR RESPONDENT:** Ethan P. Davis , Acting Assistant 1 Attorney General; Jessica E. 2 Burns , Senior Litigation Counsel , 3 E d ward C. Durant , Attorney , Office 4 of Immigration Litigation , United 5 States Department of Justice, 6 Washington, DC. 7 8 UPON DUE CONSIDERATION of this petition for review of a 9
Board of Immigration Appeals (“BIA”) decision, it is hereby 10
ORDERED, ADJUDGED, AND DECREED that the petitio n for review 11

is DENIED. 12

Petitioner Madhav Darji, a native and citizen of Nepal , 13

seek s review of a n August 21, 2018 , decision of the BIA 14
affirming a n October 25, 2017 , decision of an I mmigration 15
Judge (“IJ”) d enying asylum, withholding of removal , and 16
relief under the Convention Against Torture (“CAT”). In re 17
Madhav Darji , No. A205 727 174 ( B.I.A. Aug

. 21 , 201 8 ), aff’g 18

No. A205 727 174 (Immig. Ct. N.Y. City Oct. 25, 2017 ). We 19
assume the parties’ familiarity with the underlying facts and 20
procedural his tory. 21
We review the agency’s adverse credibility determination 22

under the substantial evidence standard

. See 8 U.S.C. 23

§ 1252(b)(4); Hong Fei Gao v. Sessions , 891 F.3d 67, 76 (2d 24
Cir. 2018). “Considering the totality of the circumstances, 25
and all relevant factors, a trier of fact may base a 263 credibility determination on the demeanor, candor, or 1
responsiveness of the applicant . . . , the consistency 2
between the applicant’s or w itness’s written and oral 3
statements . . . , the internal consistency of each such 4
statement, the consistency of such statements with other 5
evidence of record . . . and any inaccuracies or falsehoods 6
in such statements, without regard to whether an 7

inconsi stency, inaccuracy, or falsehood goes to the heart of 8
the applicant’s claim, or any other relevant factor.” 8 9

U.S.C. § 1158(b)(1)(B)(iii). “ We defer . . . to an IJ’s 10
credibility determination unless, from the totality of the 11
circumstances, it is plain th at no reasonable fact

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

Gao , 891 F.3d at 76. Here, t he agency’s adverse credibility 15
determination is supported by substantial evidenc e , including 16
inconsistencies in Darji’s testimony. 17
Although Darji asserted that he and his family were 18
targeted by Maoists , the IJ was reasonably skeptical based on 19

the fact that Darji ’s testimony was unclear and difficult to 20

follow. S ee 8 U.S.C. § 1158(b)(1)(B)(iii). We “give 21
particular deference to [credibility determinations] that are 224 based on the adjudicator’s observation of the 1
applicant’s demeanor,” particularly “where, as here, [the 2
observations] are supported by specific exampl es of 3
inconsistent testimony.” Li Hua Lin v. U.S Dep’t of Justice , 4
453 F.3d 99, 109 (2d Cir. 2006). The record supports the 5

IJ’s assessment of Darji’s testimony because it reflects his 6
varying and unclear answers as to whether he was a member of 7
the Nepali Congress Party (“NCP”), the difference between the 8

NC P and the Nepali Student Union, and why his original asylum 9
application placed him in India during a large part of his 10
alleged persecution in Nepal

. 11
The agency als o reasonably relied on inconsistencies in 12
the evidence presented by the petitioner

. Darji’s statements 13

at his credible fear interview conflicted with his testimony , 14
and he omitted incidents of persecution during the interview. 15

A s an initial matter, the interview record bore sufficient 16

“hallmarks of reliability” because the interview was 17

memorialized in a typewritten list of questions and 18

answers, Darji had an interpreter, his responses indicated 19

that he understood the questions, and the inter view included 20
questions about past harm and fear of future harm as needed 21
to elicit an asylum claim. See Ming Zhang v. Holder , 585 225 F.3d 715, 725 (2d Cir. 2009). Significantly, Darji’s 1
testimony and interview statement were inconsistent with 2

respect to wh ere a 2000 inciden t occurred, whether Maoists 3
beat him or his father during that incident, and how much 4
money they dem a nded. As a result, t he IJ was not compelled 5

to accept Darji’s assertion that he provided the same 6
information to the interpreter at the interview as he 7

testified to at the hearing, particularly as the interview 8
record indicates that Darji understood the interpreter

. S ee 9
Majidi v. Gonzales , 430 F.3d 77, 80 (2d Cir. 2005) (“A 10
petitioner must do more than offer a plausible explanation 11

for his inconsistent statements to secure relief; he must 12

demonstrate that a reasonable fact

- finder would be compelled 13
to credit his testimony.” (internal quotation marks and 14
citations omitted)). Nor did t he IJ err in relying on D a rji’s 15

failure to mention 2008 and 2011 interactions with the Maoists 16
during the interview especially since those were more recent 17

incidents central to his claim

. See Hong Fei Gao , 891 F.3d 18

at 78

– 79 (weight given to an om ission depends, in part, on 19
whether “facts are ones that a credible petitioner would 20
reasonably have been expected to disclose under the relevant 21
circumstances”). 226 The agency also reasonably relied on inconsistencies 1
between Darji’s original and amended a sylum applications. 2

S ee 8 U.S.C. § 1158(b)(1)(B)(iii)

. For example, h is original 3
application only mentioned incidents in 2000 and 2005, while 4
his amended application included details from incidents in 5

2008 and 2011. As noted above, the IJ did not err in relying 6
on these omissions, which went to the heart of Darji’s asylum 7

claim

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

– 81

. The IJ was not 8
required to credit Darji’s explanation that he had planned to 9
include these incidents in his personal statement because he 10
did not include any such statement with his original 11
application

. See Majidi , 430 F.3d at 80. 12

The IJ also reasonably relied on various inconsistencies 13
between Darji’s testimony and his wife’s letter

. 14

S ee 8 U.S.C. § 1158(b)(1)(B)(iii). Fo r instance, w hile both 15

referenced a 2008 confrontation between Darji and the 16
Maoists, Darji did not allege any physical harm , while his 17

wife’s letter stated that the Maoists beat him mercilessly. 18
Darji and his wife also provided different descriptions of 19

the 2011 incident , with Darji testifying that he was with one 20

friend , and his wif e indicating that he was with multiple 21
friends. Lastly, Darji’s wife described Darji’s father’s 227 2016 beating, which Darji did not even mention in hi s detailed 1

written statement filed just months after the alleged 2
beating. 3
Because Darji’s testimony was in question, the IJ 4
reasonably relied on his failure to rehabilitate his 5
testimony with reliable corroborating evidence. See Biao 6
Yang v. Gonzales , 49 6 F.3d 268, 273 (2d Cir. 2007) ( “An 7
applicant’s failure to corroborate his or her testimony may 8
bear on credibility, because the absence of corroboration in 9
general makes an applicant unable to rehabilitate testimony 10
that has already been called into quest ion.” )

. Moreover, t he 11

IJ did not abuse h er discretion by giving limited weight to 12

letters from Darji’s family, friend, employer, and 13
organizations because the authors were not available for 14

cross
- examination and some of them were interested parties. 15

See Y.C. v. Holder , 741 F.3d 324, 332 (2d Cir. 2013) ( “We 16
defer to the agency’s determination of the weight afforded to 17
an alien’s documentary evidence.”); see also In re H

- L

- H

- & 18

Z

- Y

- Z

- , 25 I. & N. Dec. 209, 215 (BIA 2010) (letters from 19

alien’s friends an d family were insufficient to provide 20
substantial support for alien’s claims because they were from 21
interested witnesses not subject to cross

- examination), 228 overruled on other grounds by Hui Lin Huang v. Holder , 677 1

F.3d 130, 133

– 38 (2d Cir. 2012). The IJ was likewise 2
justified in giving limited weight to Darji’s hospital 3

record s , which provided treatment dates that predat ed the 4
alleged hospitalization

. 5

Given the inconsistencies and the lack of reliable 6
corroboration, we find that the IJ’s adverse credibility 7

determination wa s supported by substantial evidenc e. See 8

8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 F.3d at 167

. 9
And since Darji’s claims for asylum, withholding of removal, 10

and CAT relief are all based on the same factual predicates, 11

t he IJ’s adverse credibility determination disposes of all 12

three forms of relief. See Paul v. Gonzales , 444 F.3d 148, 13

156

– 57 (2d Cir. 2006). 14
For the foregoing reasons, the petition for review is 15

DENIED. All pending motions and applications are DENIED and 16

stays VACATED. 17

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