17-2583 Chodak v. Barr BIA Nelson, IJ A087 786 623/624 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 20th day of May, two thousand twenty. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 DENNIS JACOBS, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 UGEN CHODAK, AKA PASANG SHERPA, 14 CHIRING SHERPA, 15 Petitioners, 16 17 v. 17-2583 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONERS: Stuart Altman, Law Office of 25 Stuart Altman, New York, NY. 26 27 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 28 General; Terri J. Scadron, 29 Assistant Director; Margot L. 1 Carter, Trial Attorney, Office of 2 Immigration Litigation, United 3 States Department of Justice, 4 Washington, DC.
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 Ugen Chodak and Chiring Sherpa, natives and
10 citizens of Nepal, seek review of a July 24, 2017, decision
11 of the BIA affirming an October 3, 2016, decision of an
12 Immigration Judge (“IJ”) denying Chodak’s application for
13 asylum, withholding of removal, and relief under the
14 Convention Against Torture (“CAT”). In re Ugen Chodak and
15 Chiring Sherpa, No. A 087 786 623/624 (B.I.A. July 24, 2017),
16 aff’g No. A 087 786 623/624 (Immig. Ct. N.Y. City Oct. 3,
17 2016). We assume the parties’ familiarity with the
18 underlying facts and procedural history in this case.
19 Under the circumstances of this case, we have reviewed
20 both the IJ’s and 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). The standards of review are well
23 established. See 8 U.S.C. § 1252(b)(4); Hong Fei Gao v.
2 1 Sessions, 891 F.3d 67, 76 (2d Cir. 2018); Yanqin Weng v.
2 Holder, 562 F.3d 510, 513-14 (2d Cir. 2009).
3 Chodak had the burden of proof for asylum. 8 U.S.C.
4 § 1158(b)(1)(B)(i).
5 The testimony of the applicant may be sufficient to 6 sustain the applicant’s burden without 7 corroboration, but only if the applicant satisfies 8 the trier of fact that the applicant’s testimony is 9 credible, is persuasive, and refers to specific 10 facts sufficient to demonstrate that the applicant 11 is a refugee. In determining whether the applicant 12 has met the applicant’s burden, the trier of fact 13 may weigh the credible testimony along with other 14 evidence of record. Where the trier of fact 15 determines that the applicant should provide 16 evidence that corroborates otherwise credible 17 testimony, such evidence must be provided unless the 18 applicant does not have the evidence and cannot 19 reasonably obtain the evidence. 20 21 8 U.S.C. § 1158(b)(1)(B)(ii). “An applicant’s failure to
22 corroborate his or her testimony may bear on credibility,
23 because the absence of corroboration in general makes an
24 applicant unable to rehabilitate testimony that has already
25 been called into question.” Biao Yang v. Gonzales, 496 F.3d
26 268, 273 (2d Cir. 2007). “We generally defer to the agency’s
27 evaluation of the weight to be afforded an applicant’s
28 documentary evidence.” Y.C. v. Holder, 741 F.3d 324, 332 (2d
29 Cir. 2013).
3 1 Contrary to Chodak’s argument, we do not assume
2 credibility because the IJ determined that Chodak’s
3 submission of blank letterhead from the Maoists “totally
4 undermine[d] his credibility.” On appeal, the BIA did not
5 disagree with this determination or state that it was assuming
6 credibility. The agency did not err in determining that
7 Chodak did not meet his burden of proof. First, the IJ
8 reasonably determined that Chodak’s submission of blank
9 Maoist letterhead to the asylum officer and his evasive
10 testimony when asked about it undermined his credibility.
11 See 8 U.S.C. § 1158(b)(1)(B)(ii); Siewe v. Gonzales, 480 F.3d
12 160, 170 (2d Cir. 2007) (“[A] single false document or a single
13 instance of false testimony may (if attributable to the
14 petitioner) infect the balance of the alien’s uncorroborated
15 or unauthenticated evidence.”).
16 Second, the agency did not otherwise err in assigning
17 minimal weight to Chodak’s evidence. See Y.C., 741 F.3d at
18 332. As noted above, the IJ did not err in declining to
19 credit the threatening letter because it appeared to be
20 fabricated. The agency also did not err in assigning little
21 weight to Chodak’s medical documentation because it was
4 1 inconsistent with his testimony that he was unconscious when
2 he arrived at the hospital. Chodak testified that his friend
3 took him to the hospital and that he was unconscious at the
4 time, but the patient discharge had the box checked for “self”
5 instead of “emergency” for how he arrived at the hospital.
6 See Siewe, 480 F.3d at 167–68 (explaining that we defer to
7 the IJ when competing inferences can be drawn from the
8 evidence). Given Chodak’s inability to provide details of
9 his hospitalization or explain why the extended stay was
10 needed, the IJ also reasonably determined that it was
11 implausible that Chodak would be hospitalized so that he could
12 rest. Id. at 168–69 (“[W]e will reject a deduction made by
13 an IJ only when there is a complete absence of probative facts
14 to support it—that is, when the speculation is ‘bald.’ The
15 speculation that inheres in inference is not ‘bald’ if the
16 inference is made available to the factfinder by record facts,
17 or even a single fact, viewed in the light of common sense
18 and ordinary experience.” (internal citation omitted)). The
19 agency also reasonably gave minimal weight to a statement in
20 a letter from the Office of Tibet in New York City that Chodak
21 was a “chief reporter” for a Tibetan newspaper in Nepal
5 1 because the letter consisted of two sentences and no
2 information about how the office had obtained the information
3 about Chodak’s employment. See Y.C., 741 F.3d at 332.
4 In sum, substantial evidence supports the agency’s
5 determination that Chodak failed to meet his burden of proof
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17-2583 Chodak v. Barr BIA Nelson, IJ A087 786 623/624 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 20th day of May, two thousand twenty. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 DENNIS JACOBS, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 UGEN CHODAK, AKA PASANG SHERPA, 14 CHIRING SHERPA, 15 Petitioners, 16 17 v. 17-2583 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONERS: Stuart Altman, Law Office of 25 Stuart Altman, New York, NY. 26 27 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 28 General; Terri J. Scadron, 29 Assistant Director; Margot L. 1 Carter, Trial Attorney, Office of 2 Immigration Litigation, United 3 States Department of Justice, 4 Washington, DC.
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 Ugen Chodak and Chiring Sherpa, natives and
10 citizens of Nepal, seek review of a July 24, 2017, decision
11 of the BIA affirming an October 3, 2016, decision of an
12 Immigration Judge (“IJ”) denying Chodak’s application for
13 asylum, withholding of removal, and relief under the
14 Convention Against Torture (“CAT”). In re Ugen Chodak and
15 Chiring Sherpa, No. A 087 786 623/624 (B.I.A. July 24, 2017),
16 aff’g No. A 087 786 623/624 (Immig. Ct. N.Y. City Oct. 3,
17 2016). We assume the parties’ familiarity with the
18 underlying facts and procedural history in this case.
19 Under the circumstances of this case, we have reviewed
20 both the IJ’s and 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). The standards of review are well
23 established. See 8 U.S.C. § 1252(b)(4); Hong Fei Gao v.
2 1 Sessions, 891 F.3d 67, 76 (2d Cir. 2018); Yanqin Weng v.
2 Holder, 562 F.3d 510, 513-14 (2d Cir. 2009).
3 Chodak had the burden of proof for asylum. 8 U.S.C.
4 § 1158(b)(1)(B)(i).
5 The testimony of the applicant may be sufficient to 6 sustain the applicant’s burden without 7 corroboration, but only if the applicant satisfies 8 the trier of fact that the applicant’s testimony is 9 credible, is persuasive, and refers to specific 10 facts sufficient to demonstrate that the applicant 11 is a refugee. In determining whether the applicant 12 has met the applicant’s burden, the trier of fact 13 may weigh the credible testimony along with other 14 evidence of record. Where the trier of fact 15 determines that the applicant should provide 16 evidence that corroborates otherwise credible 17 testimony, such evidence must be provided unless the 18 applicant does not have the evidence and cannot 19 reasonably obtain the evidence. 20 21 8 U.S.C. § 1158(b)(1)(B)(ii). “An applicant’s failure to
22 corroborate his or her testimony may bear on credibility,
23 because the absence of corroboration in general makes an
24 applicant unable to rehabilitate testimony that has already
25 been called into question.” Biao Yang v. Gonzales, 496 F.3d
26 268, 273 (2d Cir. 2007). “We generally defer to the agency’s
27 evaluation of the weight to be afforded an applicant’s
28 documentary evidence.” Y.C. v. Holder, 741 F.3d 324, 332 (2d
29 Cir. 2013).
3 1 Contrary to Chodak’s argument, we do not assume
2 credibility because the IJ determined that Chodak’s
3 submission of blank letterhead from the Maoists “totally
4 undermine[d] his credibility.” On appeal, the BIA did not
5 disagree with this determination or state that it was assuming
6 credibility. The agency did not err in determining that
7 Chodak did not meet his burden of proof. First, the IJ
8 reasonably determined that Chodak’s submission of blank
9 Maoist letterhead to the asylum officer and his evasive
10 testimony when asked about it undermined his credibility.
11 See 8 U.S.C. § 1158(b)(1)(B)(ii); Siewe v. Gonzales, 480 F.3d
12 160, 170 (2d Cir. 2007) (“[A] single false document or a single
13 instance of false testimony may (if attributable to the
14 petitioner) infect the balance of the alien’s uncorroborated
15 or unauthenticated evidence.”).
16 Second, the agency did not otherwise err in assigning
17 minimal weight to Chodak’s evidence. See Y.C., 741 F.3d at
18 332. As noted above, the IJ did not err in declining to
19 credit the threatening letter because it appeared to be
20 fabricated. The agency also did not err in assigning little
21 weight to Chodak’s medical documentation because it was
4 1 inconsistent with his testimony that he was unconscious when
2 he arrived at the hospital. Chodak testified that his friend
3 took him to the hospital and that he was unconscious at the
4 time, but the patient discharge had the box checked for “self”
5 instead of “emergency” for how he arrived at the hospital.
6 See Siewe, 480 F.3d at 167–68 (explaining that we defer to
7 the IJ when competing inferences can be drawn from the
8 evidence). Given Chodak’s inability to provide details of
9 his hospitalization or explain why the extended stay was
10 needed, the IJ also reasonably determined that it was
11 implausible that Chodak would be hospitalized so that he could
12 rest. Id. at 168–69 (“[W]e will reject a deduction made by
13 an IJ only when there is a complete absence of probative facts
14 to support it—that is, when the speculation is ‘bald.’ The
15 speculation that inheres in inference is not ‘bald’ if the
16 inference is made available to the factfinder by record facts,
17 or even a single fact, viewed in the light of common sense
18 and ordinary experience.” (internal citation omitted)). The
19 agency also reasonably gave minimal weight to a statement in
20 a letter from the Office of Tibet in New York City that Chodak
21 was a “chief reporter” for a Tibetan newspaper in Nepal
5 1 because the letter consisted of two sentences and no
2 information about how the office had obtained the information
3 about Chodak’s employment. See Y.C., 741 F.3d at 332.
4 In sum, substantial evidence supports the agency’s
5 determination that Chodak failed to meet his burden of proof
6 for asylum because there was a serious ground on which to
7 question his credibility and the IJ did not err in giving
8 little weight to his corroborating evidence. See 8 U.S.C.
9 § 1252(b)(4)(B); Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d
10 Cir. 2003) (“Where, as here, an appeal turns on the
11 sufficiency of the factual findings underlying the
12 immigration court’s determination that an alien has failed to
13 satisfy his burden of proof, we will reverse the immigration
14 court’s ruling only if no reasonable fact-finder could have
15 failed to find . . . past persecution or fear of future
16 persecution.” (internal quotation marks omitted)). Because
17 the agency did not err in determining that Chodak failed to
18 meet his burden for asylum, it did not err in finding that he
19 failed to meet the higher standards for withholding of removal
20 and CAT relief. See Lecaj v. Holder, 616 F.3d 111, 119–20
21 (2d Cir. 2010).
6 1 For the foregoing reasons, the petition for review is
2 DENIED. All pending motions and applications are DENIED and
3 stays VACATED.
4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, 6 Clerk of Court