Bhai v. Whitaker

Opinion

17-863 Bhai v. Whitaker BIA

Hom, IJ

A205 432 151/152/153/154/155

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.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 4th day of January, two thousand nineteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 ROBERT D. SACK, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 SOMESH K. BHAI, SONU KUMARI, 14 ARYANN NLN, SHANN NLN, TANUSHREE 15 NLN, 16 Petitioners, 17 18 v. 17-863 19 NAC 20 JEFFERSON B. SESSIONS III, 21 UNITED STATES ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ 24 25 FOR PETITIONERS: Anas J. Ahmed, Pannun The Firm, 26 P.C., Jackson Heights, NY. 27 28 FOR RESPONDENT: Chad A. Readler, Acting Assistant 29 Attorney General; Douglas E. 30 Ginsburg, Assistant Director; 31 Timothy Bo Stanton, Trial 32 Attorney, Office of Immigration

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1 Litigation, United States 2 Department of Justice, Washington, 3 DC. 4 5 UPON DUE CONSIDERATION of this petition for review of a

6 Board of Immigration Appeals (“BIA”) decision, it is hereby 7 ORDERED, ADJUDGED, AND DECREED that the petition for review 8 is DENIED. 9 Petitioners Somesh K. Bhai, Sonu Kumari, Aryann NLN, 10 Shann NLN, and Tanushree NLN, natives and citizens of India, 11 seek review of a March 20, 2017, decision of the BIA affirming 12 a September 17, 2015, decision of an Immigration Judge (“IJ”) 13 denying Bhai’s application for asylum, withholding of 14 removal, and relief under the Convention Against Torture 15 (“CAT”). In re Somesh K. Bhai, Sonu Kumari, Aryann NLN, 16 Shann NLN, and Tanushree NLN, Nos. A 205 432 17 151/152/153/154/155 (B.I.A. Mar. 20, 2017), aff’g No. A 205 18 432 151/152/153/154/155 (Immig. Ct. N.Y. City Sept. 17, 19 2015). We assume the parties’ familiarity with the 20 underlying facts and procedural history in this case. 21 The only issue before us is the agency’s denial of 22 withholding of removal and CAT relief as to Bhai himself. 23 Although he applied for asylum and listed the other 24 petitioners as derivative beneficiaries for that relief, the

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1 agency denied the asylum application as time barred. Bhai 2 has abandoned any challenge to that ruling and thus to that 3 form of relief by failing to challenge the time bar ruling in 4 his brief. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 5 n.1, 545 n.7 (2d Cir. 2005) (noting that petitioner abandons 6 issues and claims not raised in his brief). He similarly has 7 abandoned any challenge to the BIA’s denial of his motion to 8 remand. Id. Accordingly, we address only whether the agency 9 erred in denying withholding of removal and CAT protection on 10 credibility grounds. 11 Because the BIA affirmed the IJ’s adverse credibility 12 ruling, we consider both the IJ’s and the BIA’s decisions on 13 credibility “for the sake of completeness.” Wangchuck v. 14 Dep’t of Homeland Security, 448 F.3d 524, 528 (2d Cir. 2006). 15 The applicable standards of review are well established. See 16 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 17 162, 165-66 (2d Cir. 2008) (reviewing adverse credibility 18 determination under a substantial evidence standard). 19 “Considering the totality of the circumstances, and all 20 relevant factors, a trier of fact may base a credibility 21 determination on the demeanor, candor, or responsiveness of 22 the applicant or witness, the inherent plausibility of the

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1 applicant’s or witness’s account, the consistency between the 2 applicant’s or witness’s written and oral statements . . . , 3 the internal consistency of each such statement, the 4 consistency of such statements with other evidence of record 5 . . . , or any other relevant factor.” 8 U.S.C. 6 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility 7 determination unless . . . it is plain that no reasonable 8 fact-finder could make such an adverse credibility ruling.” 9 Xiu Xia Lin, 534 F.3d at 167. Substantial evidence supports 10 the agency’s conclusion that Bhai was not credible. 11 First, the agency reasonably relied on Bhai’s admission 12 that he filed a fake visa petition in finding him not 13 credible. See 8 U.S.C. § 1158(b)(1)(B)(iii) (requiring an 14 IJ to consider “the totality of the circumstances”); Xiu Xia 15 Lin, 534 F.3d at 165 (same). Bhai initially stated that his 16 visa petition “was a wrong and fake case.” Although he then 17 placed the blame on his prior attorney for submitting 18 incorrect documents, we defer to the IJ because the record 19 supports the IJ’s inference given all of the reasons for the 20 denial of the visa. See Siewe v. Gonzales, 480 F.3d 160, 21 167-68 (2d Cir. 2007). The IJ reasonably concluded that this 22 initial false attempt to obtain an immigration benefit

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1 undermined his credibility as a whole. See Siewe, 480 F.3d 2 at 170 (“We have “frequently . . . held [that] an IJ’s 3 application of the maxim falsus in uno, falsus in 4 omnibus [false in one thing, false in everything] may at times 5 be appropriate.” (internal quotation marks omitted)).1 6 Second, the agency reasonably concluded that Bhai’s 7 credibility was further undermined by his two return trips to 8 India after the alleged persecution. See 8 U.S.C. 9 § 1158(b)(1)(B)(iii) (allowing consideration of any “relevant 10 factor”). Although “return trips alone are insufficient to 11 establish lack of credibility,” where, as here, an 12 applicant’s credibility is already in question, the agency 13 may consider voluntary return trips. Kone v. Holder, 596 14 F.3d 141, 150 (2d Cir. 2010). Bhai does not challenge the 15 agency’s reliance on this factor. See Yueqing Zhang, 426 16 F.3d at 541 n.1, 545 n.7. 17 Third, Bhai’s corroborating evidence and his wife’s 18 testimony were insufficient to rehabilitate his credibility.

1Bhai also argues that the IJ erred by faulting him for not calling his father to testify regarding the circumstances of the L visa petition because his father is deceased. However, Bhai did not raise this issue before the BIA, and it therefore has not been exhausted. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007) (requiring petitioner to exhaust issues before the BIA).

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1 See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) 2 (“An applicant’s failure to corroborate his . . . testimony 3 may bear on credibility, because the absence of corroboration 4 in general makes an applicant unable to rehabilitate 5 testimony that has already been called into question”). 6 Bhai’s wife’s testimony did not rehabilitate Bhai’s 7 credibility because she was an interested party and was not 8 a direct witness to the alleged persecution. See Xiao Ji 9 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341-42 (2d Cir. 10 2006) (concluding that weight afforded to applicant’s 11 evidence in immigration proceedings “lies largely within the 12 discretion of the IJ” (internal brackets and quotation marks 13 omitted)). The IJ also reasonably concluded that unsworn 14 letters from India lack indicia of reliability and were 15 entitled to little weight. See id.; see also Y.C. v. Holder, 16 741 F.3d 324, 334 (2d Cir. 2013) (deferring to agency’s 17 decision to give little weight to letter from applicant’s 18 spouse in China); In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 19 215 (BIA 2010) (giving diminished weight to letters from 20 relatives because they were from interested witnesses not 21 subject to cross-examination), rev’d on other grounds by Hui 22 Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012).

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1 Given Bhai’s admission to filing a fake visa application 2 and his return trips to India despite the alleged persecution, 3 substantial evidence supports the adverse credibility 4 determination. That determination is dispositive of 5 withholding of removal and CAT relief because both claims are 6 based upon the same factual predicate. See Paul v. Gonzales, 7 444 F.3d 148, 156-57 (2d Cir. 2006). 8 For the foregoing reasons, the petition for review is 9 DENIED. As we have completed our review, any stay of removal 10 that the Court previously granted in this petition is VACATED, 11 and any pending motion for a stay of removal in this petition 12 is DISMISSED as moot. Any pending request for oral argument 13 in this petition is DENIED in accordance with Federal Rule of 14 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 15 34.1(b).

16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, 18 Clerk of Court