20-3152 Bohara v. Garland BIA Poczter, IJ A209 383 931 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 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 21st day of December, two thousand twenty- 5 two. 6 7 PRESENT: 8 DENNY CHIN, 9 RAYMOND J. LOHIER, JR., 10 ALISON J. NATHAN, 11 Circuit Judges. 12 _____________________________________ 13 14 PREM PRAKESH BOHARA, 15 Petitioner, 16 17 v. 20-3152 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Khagendra Gharti-Chhetry, Chhetry 25 & Associates, P.C., New York, NY. 26 27 FOR RESPONDENT: Brian Boynton, Acting Assistant 28 Attorney General; Jessica A. 1 Dawgert, Senior Litigation 2 Counsel; Jeffrey M. Hartman, Trial 3 Attorney, Office of Immigration 4 Litigation, United States 5 Department of Justice, Washington, 6 DC.
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Prem Prakesh Bohara, a native and citizen of
12 Nepal, seeks review of an August 25, 2020 decision of the BIA
13 affirming a July 25, 2018 decision of an Immigration Judge
14 (“IJ”), which denied his application for asylum, withholding
15 of removal, and relief under the Convention Against Torture
16 (“CAT”). In re Prem Prakesh Bohara, No. A 209 383 931 (B.I.A.
17 Aug. 25, 2020), aff’g No. A 209 383 931 (Immig. Ct. N.Y.C.
18 July 25, 2018). We assume the parties’ familiarity with the
19 underlying facts and procedural history.
20 We have considered both the IJ’s and the BIA’s decisions
21 “for the sake of completeness.” Wangchuck v. Dep’t of
22 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review
23 the agency’s factual findings for substantial evidence and
24 questions of law and application of law to fact de novo. See
2 1 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). The
2 agency’s findings of fact are “conclusive unless any
3 reasonable adjudicator would be compelled to conclude to the
4 contrary.” 8 U.S.C. § 1252(b)(4)(B). We find no error in
5 the agency’s determinations that Bohara filed a frivolous
6 asylum application and that he was not credible.
7 I. Frivolous Asylum Application
8 “If the Attorney General determines that an alien has
9 knowingly made a frivolous application for asylum . . . , the
10 alien shall be permanently ineligible for any benefits under
11 this chapter, effective as of the date of a final
12 determination on such application.” 8 U.S.C. § 1158(d)(6).
13 An asylum application is “frivolous if any of its material
14 elements is deliberately fabricated. Such finding shall only
15 be made if the [IJ or BIA] is satisfied that the applicant,
16 during the course of the proceedings, has had sufficient
17 opportunity to account for any discrepancies or implausible
18 aspects of the claim.” 8 C.F.R. § 1208.20. 1 Before making
19 such a finding an IJ must satisfy the following requirements:
20 (1) notice to the alien of the consequences of 21 filing a frivolous application; (2) a specific
1 Citations are to the version of the regulations in effect at the time of the agency’s decisions. 3 1 finding by the Immigration Judge or the Board that 2 the alien knowingly filed a frivolous application; 3 (3) sufficient evidence in the record to support 4 the finding that a material element of the asylum 5 application was deliberately fabricated; and (4) an 6 indication that the alien has been afforded 7 sufficient opportunity to account for any 8 discrepancies or implausible aspects of the claim. 9 10 Biao Yang v. Gonzales, 496 F.3d 268, 275 (2d Cir.
11 2007) (quoting In re Y-L-, 24 I. & N. Dec. 151, 155 (B.I.A.
12 2007)); see also 8 U.S.C. § 1158(d)(4)(A) (requiring notice
13 of consequences of filing frivolous application). The record
14 does not support Bohara’s argument that the agency failed to
15 satisfy the second and third requirements.
16 As to these requirements, the IJ found that Bohara’s
17 asylum application contained a story that was fabricated and
18 contained material misrepresentations designed to elicit a
19 favorable outcome. Bohara argues that the IJ was not allowed
20 to consider statements in his credible fear interviews
21 because the records of those interviews were not reliable.
22 To the contrary, the records contain sufficient indicia of
23 reliability because they listed the questions asked and
24 Bohara’s responses, the interviewers asked questions designed
25 to elicit an asylum claim, the interviews were conducted with
26 an interpreter in Bohara’s native language, and Bohara was
4 1 responsive to questioning and confirmed that he understood
2 the interpreter. See Ming Zhang v. Holder, 585 F.3d 715,
3 723–25 (2d Cir. 2009); Ramsameachire v. Ashcroft, 357 F.3d
4 169, 179–80 (2d Cir. 2004).
5 Contrary to Bohara’s position, the IJ found that Bohara
6 knowingly filed a frivolous asylum application. As the IJ
7 determined, Bohara changed the story from his credible fear
8 interviews, at which he stated that he was not a member of a
9 political party and that he had not suffered any physical
10 harm on account of political activities, by testifying that
11 he was a member of the Nepali Congress Party and that he
12 suffered severe physical abuse by Maoists because of his
13 political opinion. While, as Bohara contends, the IJ did not
14 use the word “deliberate” when making her finding of
15 frivolousness, she correctly stated the applicable legal
16 standards, made separate, specific factual findings
17 pertaining to frivolousness sufficient to support that
18 determination, and held that Bohara’s asylum application had
19 been “fabricated in that it contains material
20 misrepresentation designed to elicit a favorable finding on
21 the asylum application by this court.” CAR 56 (emphasis
5 1 added). On this record, there is no doubt that the IJ
2 “separately address[ed] and include[d] specific findings that
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20-3152 Bohara v. Garland BIA Poczter, IJ A209 383 931 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 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 21st day of December, two thousand twenty- 5 two. 6 7 PRESENT: 8 DENNY CHIN, 9 RAYMOND J. LOHIER, JR., 10 ALISON J. NATHAN, 11 Circuit Judges. 12 _____________________________________ 13 14 PREM PRAKESH BOHARA, 15 Petitioner, 16 17 v. 20-3152 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Khagendra Gharti-Chhetry, Chhetry 25 & Associates, P.C., New York, NY. 26 27 FOR RESPONDENT: Brian Boynton, Acting Assistant 28 Attorney General; Jessica A. 1 Dawgert, Senior Litigation 2 Counsel; Jeffrey M. Hartman, Trial 3 Attorney, Office of Immigration 4 Litigation, United States 5 Department of Justice, Washington, 6 DC.
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Prem Prakesh Bohara, a native and citizen of
12 Nepal, seeks review of an August 25, 2020 decision of the BIA
13 affirming a July 25, 2018 decision of an Immigration Judge
14 (“IJ”), which denied his application for asylum, withholding
15 of removal, and relief under the Convention Against Torture
16 (“CAT”). In re Prem Prakesh Bohara, No. A 209 383 931 (B.I.A.
17 Aug. 25, 2020), aff’g No. A 209 383 931 (Immig. Ct. N.Y.C.
18 July 25, 2018). We assume the parties’ familiarity with the
19 underlying facts and procedural history.
20 We have considered both the IJ’s and the BIA’s decisions
21 “for the sake of completeness.” Wangchuck v. Dep’t of
22 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review
23 the agency’s factual findings for substantial evidence and
24 questions of law and application of law to fact de novo. See
2 1 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). The
2 agency’s findings of fact are “conclusive unless any
3 reasonable adjudicator would be compelled to conclude to the
4 contrary.” 8 U.S.C. § 1252(b)(4)(B). We find no error in
5 the agency’s determinations that Bohara filed a frivolous
6 asylum application and that he was not credible.
7 I. Frivolous Asylum Application
8 “If the Attorney General determines that an alien has
9 knowingly made a frivolous application for asylum . . . , the
10 alien shall be permanently ineligible for any benefits under
11 this chapter, effective as of the date of a final
12 determination on such application.” 8 U.S.C. § 1158(d)(6).
13 An asylum application is “frivolous if any of its material
14 elements is deliberately fabricated. Such finding shall only
15 be made if the [IJ or BIA] is satisfied that the applicant,
16 during the course of the proceedings, has had sufficient
17 opportunity to account for any discrepancies or implausible
18 aspects of the claim.” 8 C.F.R. § 1208.20. 1 Before making
19 such a finding an IJ must satisfy the following requirements:
20 (1) notice to the alien of the consequences of 21 filing a frivolous application; (2) a specific
1 Citations are to the version of the regulations in effect at the time of the agency’s decisions. 3 1 finding by the Immigration Judge or the Board that 2 the alien knowingly filed a frivolous application; 3 (3) sufficient evidence in the record to support 4 the finding that a material element of the asylum 5 application was deliberately fabricated; and (4) an 6 indication that the alien has been afforded 7 sufficient opportunity to account for any 8 discrepancies or implausible aspects of the claim. 9 10 Biao Yang v. Gonzales, 496 F.3d 268, 275 (2d Cir.
11 2007) (quoting In re Y-L-, 24 I. & N. Dec. 151, 155 (B.I.A.
12 2007)); see also 8 U.S.C. § 1158(d)(4)(A) (requiring notice
13 of consequences of filing frivolous application). The record
14 does not support Bohara’s argument that the agency failed to
15 satisfy the second and third requirements.
16 As to these requirements, the IJ found that Bohara’s
17 asylum application contained a story that was fabricated and
18 contained material misrepresentations designed to elicit a
19 favorable outcome. Bohara argues that the IJ was not allowed
20 to consider statements in his credible fear interviews
21 because the records of those interviews were not reliable.
22 To the contrary, the records contain sufficient indicia of
23 reliability because they listed the questions asked and
24 Bohara’s responses, the interviewers asked questions designed
25 to elicit an asylum claim, the interviews were conducted with
26 an interpreter in Bohara’s native language, and Bohara was
4 1 responsive to questioning and confirmed that he understood
2 the interpreter. See Ming Zhang v. Holder, 585 F.3d 715,
3 723–25 (2d Cir. 2009); Ramsameachire v. Ashcroft, 357 F.3d
4 169, 179–80 (2d Cir. 2004).
5 Contrary to Bohara’s position, the IJ found that Bohara
6 knowingly filed a frivolous asylum application. As the IJ
7 determined, Bohara changed the story from his credible fear
8 interviews, at which he stated that he was not a member of a
9 political party and that he had not suffered any physical
10 harm on account of political activities, by testifying that
11 he was a member of the Nepali Congress Party and that he
12 suffered severe physical abuse by Maoists because of his
13 political opinion. While, as Bohara contends, the IJ did not
14 use the word “deliberate” when making her finding of
15 frivolousness, she correctly stated the applicable legal
16 standards, made separate, specific factual findings
17 pertaining to frivolousness sufficient to support that
18 determination, and held that Bohara’s asylum application had
19 been “fabricated in that it contains material
20 misrepresentation designed to elicit a favorable finding on
21 the asylum application by this court.” CAR 56 (emphasis
5 1 added). On this record, there is no doubt that the IJ
2 “separately address[ed] and include[d] specific findings that
3 [Bohara] deliberately fabricated material elements of his
4 asylum claim.” Biao Yang, 496 F.3d at 276 (quotation marks
5 omitted). Moreover, these misrepresentations are material
6 because they go to the severity of the harm Bohara experienced
7 and whether that harm was inflicted on the basis of a
8 protected ground, which are key to a determination of past
9 persecution. See Ivanishvili v. U.S. Dep’t of Just., 433
10 F.3d 332, 341 (2d Cir. 2006).
11 II. Adverse Credibility Determination
12 The agency’s frivolousness finding does not render Bohara
13 ineligible for withholding of removal and CAT protection.
14 See 8 C.F.R. § 1208.20. However, these forms of relief fail
15 on credibility grounds. We review an adverse credibility
16 determination for substantial evidence. See Hong Fei Gao v.
17 Sessions, 891 F.3d 67, 76 (2d Cir. 2018). As noted above,
18 the record reflects inconsistencies in Bohara’s statements
19 about his membership in a political party and the severity of
20 the abuse he suffered. These inconsistencies constitute
21 substantial evidence for the agency’s adverse credibility
6 1 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Likai Gao
2 v. Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven a
3 single inconsistency might preclude an alien from showing
4 that an IJ was compelled to find him credible. Multiple
5 inconsistencies would so preclude even more forcefully.”);
6 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (“We
7 defer . . . to an IJ’s credibility determination unless, from
8 the totality of the circumstances, it is plain that no
9 reasonable fact-finder could make such an adverse credibility
10 ruling.”).
11 For the foregoing reasons, the petition for review is
12 DENIED. All pending motions and applications are DENIED and
13 stays VACATED.
14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, 16 Clerk of Court 17