17-1005 Bohara v. Whitaker BIA Poczter, IJ A206 475 735



### 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 25 th**  **day of January, two thousand nineteen.** 4 5 **PRESENT:** 6 **JON O. NEWMAN,** 7 **DENNY CHIN,** 8 **CHRISTOPHER F. DRONEY,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **RAM KRISHNA BOHARA,** 13 Petitioner **,** 14 15 **v. 17-1005** 16 **NAC** 17 **MATTHEW G. WHITAKER,** 18 **ACTING UNITED STATES ATTORNEY** 19 **GENERAL,** 20 Respondent **.** 21

**_____________________________________** 22 23 242 **FOR PETITIONER:** Khagendra Gharti-Chhetry, New 1 York, NY. 2 3 **FOR RESPONDENT:** Chad A. Readler, Principal 4 Deputy Assistant Attorney 5 General; Cindy S. Ferrier, 6 Assistant Director; Surell 7 Brady, Trial Attorney, Office of 8 Immigration Litigation, United 9 States Department of Justice, 10 Washington, DC. 11 12 UPON DUE CONSIDERATION of this petition for review of a 13 Board of Immigration Appeals (“BIA”) decision, it is hereby 14 ORDERED, ADJUDGED, AND DECREED that the petition for review 15 is DENIED. 16 Petitioner Ram Krishna Bohara, a native and citizen of 17 Nepal, seeks review of a March 9, 2017, decision of the BIA 18 affirming an August 2, 2016, d ecision of an Immigration Judge 19 (“IJ”) denying Bohara’s application for asylum, withholding 20 of removal, and relief under the Convention Against Torture 21 (“CAT”). In re Ram Krishna Bohara, No. A206 475 735 (B.I.A. 22 Mar. 9, 2017), aff’g No. A206 475 735 (Immig. Ct. N.Y. City 23 Aug. 2, 2016). We assume the parties’ familiarity with the 24 underlying facts and procedural history in this case. 25 Under the circumstances of this case, we have reviewed 26 the IJ’s decision as the final agency decision. Shunfu Li v. 27 Mukasey , 529 F.3d 141, 146 (2d Cir. 2008). The applicable 283 standards of review are well established. See 8 U.S.C. 1 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey , 534 F.3d 162, 165- 2 66 (2d Cir. 2008). 3 The governing REAL ID Act credibility standard provides 4 that the agency must “[c]onsider[] the totality of the 5 circumstances,” and may base a credibility finding on 6 inconsistencies or omissions in his or his witness’s 7 statements, “without regard to whether” they go “to the 8 heart of the applicant’s claim.” 8 U.S.C. 9 § 1158(b)(1)(B)(iii); accord Xiu Xia Lin , 534 F.3d at 163- 10 64, 166-67. “[E]ven where an IJ relies on discrepancies or 11 lacunae that, if taken separately, concern matters 12 collateral or ancillary to the claim, the cumulative effect 13 may nevertheless be deemed consequential by the fact14 finder.” Tu Lin v. Gonzales , 446 F.3d 395, 402 (2d Cir. 15 2006) (internal quotation marks and citation omitted). “We 16 defer . . . to an IJ’s credibility determination 17 unless . . . it is plain that no reasonable fact-finder 18 could make such an adverse credibility ruling.” Xiu Xia 19 Lin , 534 F.3d at 167. See also Hong Fei Gao v. Sessions, 20 891 F.3d 67, 77 (2d Cir. 2018). For the reasons that 214 follow, we conclude that substantial evidence supports the 1 agency’s credibility ruling. 2 First, the agency reasonably relied on inconsistency 3 between Bohara’s testimony and evidence concerning his one 4 alleged physical altercation with Maoists. Id . at 163-64. 5 Bohara’s application and testimony reflected that he was 6 slapped by one individual; however, a letter from the 7 Nepali Congress Party (“NCP”) stated that Maoists attacked 8 and injured him, and a letter from a NCP candidate stated 9 that Bohara was badly injured by Maoists. The agency was 10 not required to credit Bohara’s explanation—that he did not 11 know why the letters stated that was injured—because it did 12 not explain the inconsistencies. Majidi v. Gonzales , 430 13 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more than 14 offer a plausible explanation for his inconsistent 15 statements to secure relief; he must demonstrate that a 16 reasonable fact-finder would be compelled to credit his 17 testimony.” (internal quotation marks omitted)). The agency 18 also properly found these discrepancies significant because 19 they related to Bohara’s only allegation of past physical 20 harm. Xiu Xia Lin , 534 F.3d at 163-64. 215 Second, the agency reasonably relied on inconsistency 1 between Bohara’s testimony and evidence concerning when he 2 joined the NCP. Tu Lin , 446 F.3d at 402. Bohara testified 3 that he joined the NCP on August 19, 2006, but his party’s 4 letter stated that he joined on April 10, 2008. The agency 5 was not compelled to credit Bohara’s explanation that he 6 forgot when he joined the NCP. Majidi , 430 F.3d at 80. 7 Although a discrepancy in dates need not be fatal if “minor 8 and isolated,” Diallo v. INS , 232 F.3d 279, 288 (2d Cir. 9 2000), Bohara’s date discrepancy spanned nearly two years. 10 Moreover, Bohara’s credibility on this point was further 11 undermined by the fact that his party certificate had a 12 blank space for his membership date. See Xiu Xia Lin , 534 13 F.3d at 166-67 & n.3 (“An inconsistency and an omission 14 are . . . functionally equivalent” for credibility 15 purposes.). 16 Third, the agency reasonably relied on the inconsistency 17 between Bohara’s testimony and evidence concerning the 18 results of the 2013 constituent assembly elections. Id . at 19 163-64. Bohara’s testimony that Maoists won the elections 20 was contradicted by the country conditions evidence. After 21 initially testifying that the country conditions evidence was 226 wrong, Bohara explained that he forgot who won. The agency 1 reasonably rejected this explanation because Bohara 2 specifically testified that he worked on these elections. 3 Majidi , 430 F.3d at 80. 4 Fourth, the agency reasonably relied on inconsistency 5 between Bohara’s testimony and evidence concerning the date 6 of his father’s attack. Tu Lin , 446 F.3d at 402. Bohara 7 testified that Maoists attacked his father on November 25, 8 2015, but a letter from the police stated that the attack 9 occurred on December 7, 2015. The agency did not err in 10 rejecting Bohara’s explanation—that the date in the letter 11 was a mistake—because it was not compelling given the other 12 date discrepancies in the record. Majidi , 430 F.3d at 80. 13 While this inconsistency is minor, it nevertheless provides 14 additional support for the agency’s adverse credibility 15 ruling. Tu Lin , 446 F.3d at 402. 16 Given the foregoing inconsistencies, which call into 17 question Bohara’s sole allegation of past physical harm and 18 whether he supported the NCP, the “totality of the 19 circumstances” supports the agency’s adverse credibility 20 determination. Xiu Xia Lin , 534 F.3d at 167. The 21 credibility determination is dispositive of asylum, 227 withholding of removal, and CAT relief because all three 1 claims are based on the same factual predicate. See Paul v. 2 Gonzales , 444 F.3d 148, 156-57 (2d Cir. 2006). 3 For the foregoing reasons, the petition for review is 4

DENIED. 5
FOR THE COURT: 6 Catherine O’Hagan Wolfe 7 Clerk of Court 8