20

- 4 16 Banjade v. Garland

BIA

Christensen

, IJ

A 208 597 272

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
FED ERAL 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 for the Second 1
Circuit , held at the Thurgood Marshall United States Courthouse, 40 Foley 2 Square, in the City of New York, on the 1 9 t h day of N o v e m b e r , two thousand 3 twenty

- one. 4

5
PRESENT: 6 JON O. NEWMAN, 7 DENNY CHIN, 8 RICHARD J. SULLIVAN, 9 Circuit Judges. 10

_____________________________________ 11

12 BHARAT CHANDRA BANJADE 13
Petitioner

, 14

15

v. 20

- 4 16 16
NAC 17
MERRICK B. GARLAND , UNITED 18 STATES ATTORNEY GENERAL, 19 Respondent

. 202 _____________________________________ 1

2
FOR PETITIONER : Jason Schaffer

, Esq.

, New York , NY

. 3

4
FOR RESPONDENT: Ethan P. Davis

, Acting Assistant Attorney 5
Genera l

, Civil Division; Anthony C. Payne

, 6
Assistant Director ; Judith R. O’Sullivan, Trial 7 Attorney

, Office of Immigration Litigation, 8 United States Department of Justice, 9 Washington, DC. 10

UPON DUE CONSIDERATION of this petition for review of a Board of 11

Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 12

DECREED that the petition for review is DENIED

. 13

Petitioner Bharat Chandra Banjade , a native and citizen of Nepal , seeks 14

review of a January 7 , 20 20 decision of the BIA affirming a n April 1 7

, 201 8 decision 15

of an Immigration Judge (“IJ”) denying h is application for asylum, withholding of 16

removal , and protection under the Convention Against Torture (“CAT”)

. In r e 17

Bharat Chandra Banjade

, No. A 20 8 597 272 (B.I.A. Jan

. 7 , 2020 )

, aff’g No. A20 8 597 18

272 (Immig. Ct. N.Y . City Apr

. 17 , 2018 ). We assume the parties’ familiarity with 19

the underlying facts and procedural history. 20

When the BIA’s “opinion closely tracks the IJ’s reasoning” without 21

“expressly ‘adopt[ing]’” it, we typically consider both opinions “for the sake of 223 completeness.” Wangchuck v. Dep’t of Homeland Sec. , 448 F.3d 524, 528 (2d Cir. 1

2006). We review adverse credibility dete rminations for substantial evidence, see 2

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

findings of fact as “conclusive unless any reasonable adjudicator would be 4

compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)( 4)(B). 5

Here, the agency denied relief on the basis of an adverse credibility finding. 6

“Considering the totality of the circumstances, and all relevant factors, a trier of 7

fact may base a credibility determination on the demeanor, candor, or 8

responsivenes s of the applicant

. . . , the inherent plausibility of the applicant’s

. . . 9

account, ” and inconsistencies within and between an applicant’s statements

. Id. 10

§ 1158(b)(1)(B)(iii). “ We defer

. . . to an IJ’s credibility determination unless, from 11

the totality of the circumstances, it is plain that no reasonable fact

- finder could 12

make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey , 534 F.3d 162, 167 13

(2d Cir. 2008); accord Hong Fei Gao , 891 F.3d at 76

. 14

S ubstantial evidence supports the agency’s adverse credibility 15

determination. T he agency reasonably relied on the cumulative effect of many 16

inconsistencies between Banjade’s testimony, a letter from his wife, and police 17

reports

, regarding such matters as who reported the 2013 and 2015 attacks to the 184 police, whether the police report of the 2015 attack was contemporaneous, whether 1

his wife and father were also attacked in 2015, and how often his wife has relocated 2

since he left Nepal. See Xiu Xia Lin , 534 F.3d at 167 (citing the significance of “the 3

cumulative effect of th[e] inconsistencies”)

. The agency also reasonabl y relied on 4

Banjade’s omissions from the detailed written statement attached to his 5

application

. Id. Banjade ’s application did not mention filing a police report after 6

the 2013 attack

, his father’s assault during the 2015 attack at their home, or 7

telephonic death threats. 8

While the omission of threatening phone calls alone might be excusable

, the 9

agency reasonably relied on the other omissions , which were of sufficiently 10

momentous events that an asylum applicant would be expected to include them 11

in an application

. S ee Hong Fei Gao , 891 F.3d at 78

– 79 ( explaining that “ applicants 12

are not required to list every incident of persecution

, ” but an IJ considers “whether 13

those facts are ones that a credible petitioner would reasonably have been expected 14

to disclose under the relevant circumstances” ). Given the multiple inconsistenc ies 15

and omissions

, substantial evidence supports the agency’s adverse credibility 16

determination. See 8 U.S.C. § 1158(b)(1)(B)(iii). That determination was 175 dispositive of asylum, withholding of removal, and CAT relief

. 1 1

For the foregoing reasons, the petition for review is DENIED. All pending 2

motions and applica tions are DENIED and stays VACATED. 3

FOR THE COURT: 4 Catherine O’Hagan Wolfe, 5
Clerk of Court 6

1 An adverse credibility determination with respect to an asylum claim does not doom a CAT

claim if there is additional evidence of a likelihood of torture , such as reports on widespread torture in the alien’s country of origin. Ramsameachire v. Ashcroft , 357 F.3d 169, 184

– 85 (2d Cir. 2004)

. B ut “a petition for CAT relief may fail because of an adverse credibil ity ruling rendered in the asylum context where the factual basis for the alien ’ s CAT claim was the same as that rejected in his asylum petition

. ” Paul v. Gonzales , 444 F.3d 148, 157 (2d Cir. 2006). The question is whether there is additional “objective evidence” that the alien is likely to be tortured, independent of the facts alleged in his asylum claim. Ramsameachire

, 357 F.3d at 185. On appeal, Banjade argues that
there is, and he points to evidence he submitted to the IJ of general political unrest and violence in Nepal

. H e did not , however, adequately raise this argument in his brief to the BIA

, so he has failed to preserve it for our review. See Foster v. INS , 376 F.3d 75, 78 (2d Cir. 2004).