Gautam v. Garland

20-3046 Gautam v. Garland BIA Ruehle, IJ A209 161 081 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 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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 6th day of January, two thousand twenty-three. [5] 6 PRESENT: 7 RICHARD J. SULLIVAN, 8 STEVEN J. MENASHI, 9 EUNICE C. LEE, 10 Circuit Judges. 11 _____________________________________ [12] 13 DIL PRASAD GAUTAM, 14 Petitioner, [15] 16 v. 20-3046 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ [22] 23 FOR PETITIONER: Khagendra Gharti-Chhetry, New 24 York, NY. [25] 26 FOR RESPONDENT: Brian Boynton, Acting Assistant 27 Attorney General; M. Jocelyn Lopez 28 Wright, Senior Litigation Counsel; 1 Jeffrey M. Hartman, Trial 2 Attorney, Office of Immigration 3 Litigation, United States 4 Department of Justice, Washington, 5 DC. 6 UPON DUE CONSIDERATION of this petition for review of a 7 Board of Immigration Appeals (“BIA”) decision, it is hereby 8 ORDERED, ADJUDGED, AND DECREED that the petition for review 9 is DENIED. 10 Petitioner Dil Prasad Gautam, a native and citizen of 11 Nepal, seeks review of a decision of the BIA affirming a 12 decision of an Immigration Judge (“IJ”) denying his 13 application for asylum, withholding of removal, and relief 14 under the Convention Against Torture (“CAT”). In re Dil 15 Prasad Gautam, No. A 209 161 081 (B.I.A. Aug. 11, 2020), aff’g 16 No. A 209 161 081 (Immigr. Ct. Buffalo June 5, 2018). We 17 assume the parties’ familiarity with the underlying facts and 18 procedural history. 19 Under the circumstances of this case, we have reviewed 20 both the IJ’s and the BIA’s decisions “for the sake of 21 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 22 524, 528 (2d Cir. 2006). We review adverse credibility 23 determinations for substantial evidence, see Hong Fei Gao v. 24 Sessions, 891 F.3d 67, 76 (2d Cir. 2018), and “the [2] 1 administrative findings of fact are conclusive unless any 2 reasonable adjudicator would be compelled to conclude to the 3 contrary,” 8 U.S.C. § 1252 (b)(4)(B). “Considering the 4 totality of the circumstances, and all relevant factors, a 5 trier of fact may base a credibility determination on the 6 demeanor, candor, or responsiveness of the applicant or 7 witness, . . . the consistency between the applicant’s or 8 witness’s written and oral statements[,] . . . the internal 9 consistency of each such statement, [and] the consistency of 10 such statements with other evidence of record[,] . . . 11 without regard to whether an inconsistency, inaccuracy, or 12 falsehood goes to the heart of the applicant’s claim, or any 13 other relevant factor.” 8 U.S.C. § 1158 (b)(1)(B)(iii). “We 14 defer . . . to an IJ’s credibility determination unless, from 15 the totality of the circumstances, it is plain that no 16 reasonable fact-finder could make such an adverse credibility 17 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 18 2008). 19 Here, substantial evidence supports the agency’s 20 determination that Gautam was not credible as to his claim 21 that he and his family were persecuted because of his support [3] 1 of the Nepali Student Union and the Nepali Congress Party. 2 The agency reasonably relied on multiple inconsistencies 3 within Gautam’s testimony and between his testimony and other 4 evidence. See 8 U.S.C. § 1158 (b)(1)(B)(iii). The record 5 reflects that Gautam was inconsistent regarding whether he 6 was a member of the Nepali Congress Party, whether his wife 7 and eldest son were beaten or just threatened by Maoists, and 8 when he regained consciousness following an alleged beating. 9 The agency was not required to credit Gautam’s explanations 10 that he was nervous, uneducated, and had no experience 11 testifying. See Yun-Zui Guan v. Gonzales, 432 F.3d 391 , 397 12 n.6 (2d Cir. 2005) (explaining that “an alien’s mere 13 recitation that he was nervous” does not “automatically 14 prevent the IJ or BIA” from relying on inconsistent 15 statements); see also Majidi v. Gonzales, 430 F.3d 77, 80 (2d 16 Cir. 2005) (“A petitioner must do more than offer a plausible 17 explanation for his inconsistent statements to secure relief; 18 he must demonstrate that a reasonable fact-finder would be 19 compelled to credit his testimony.” (internal quotation marks 20 omitted)). [4] 1 Gautam fails to make any specific arguments or identify 2 how the agency erred in relying on the remaining 3 inconsistencies. He therefore forfeits any challenge to 4 these aspects of the agency’s decision. See Yueqing Zhang 5 v. Gonzales, 426 F.3d 540 , 545 n.7 (2d Cir. 2005) (deeming 6 applicant’s “claim abandoned” where he raised an issue in 7 “only a single conclusory sentence”). Inconsistencies 8 between Gautam’s statements and his corroborating evidence, 9 and the lack of evidence of country conditions demonstrating 10 Maoist violence in 2015, further undermine his credibility. 11 See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) 12 (“[T]he absence of corroboration in general makes an 13 applicant unable to rehabilitate testimony that has already 14 been called into question.”). 15 In short, the multiple inconsistencies and lack of 16 reliable corroboration constitute substantial evidence for 17 the agency’s adverse credibility determination. See 8 U.S.C. 18 § 1158(b)(1)(B)(iii); Likai Gao v. Barr, 968 F.3d 137 , 145 19 n.8 (2d Cir. 2020) (“[E]ven a single inconsistency might 20 preclude an alien from showing that an IJ was compelled to 21 find him credible. Multiple inconsistencies would so [5] 1 preclude even more forcefully.”). Moreover, the adverse 2 credibility determination is dispositive of asylum, 3 withholding of removal, and CAT relief because all three 4 claims were based on the same factual predicate. See Paul 5 v. Gonzales, 444 F.3d 148 , 156–57 (2d Cir. 2006). 6 For the foregoing reasons, the petition for review is 7 DENIED. All pending motions and applications are DENIED and 8 stays VACATED. 9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, 11 Clerk of Court