Darji v. Wilkinson

Opinion

18-2778 Darji v. Wilkinson BIA

Wright, IJ

A205 727 174

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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 25th day of January, two thousand twenty-one. 5 6 PRESENT: 7 DEBRA ANN LIVINGSTON, 8 Chief Judge, 9 PIERRE N. LEVAL, 10 RICHARD J. SULLIVAN, 11 Circuit Judges. 12 _____________________________________ 13 14 MADHAV DARJI, 15 Petitioner, 16 17 v. 18-2778 18 NAC 19 MONTY WILKINSON, ACTING 20 UNITED STATES ATTORNEY GENERAL, 21 Respondent.* 22 _____________________________________ 23 24 25 FOR PETITIONER: Jason Schaffer, Esq., New York, 26 NY. 27

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General Monty Wilkinson is automatically substituted for former Acting Attorney General Jeffrey A. Rosen as Respondent.

1 FOR RESPONDENT: Ethan P. Davis, Acting Assistant 2 Attorney General; Jessica E. 3 Burns, Senior Litigation Counsel, 4 Edward C. Durant, Attorney, Office 5 of Immigration Litigation, United 6 States Department of Justice, 7 Washington, DC. 8 9 UPON DUE CONSIDERATION of this petition for review of a

10 Board of Immigration Appeals (“BIA”) decision, it is hereby 11 ORDERED, ADJUDGED, AND DECREED that the petition for review 12 is DENIED. 13 Petitioner Madhav Darji, a native and citizen of Nepal, 14 seeks review of an August 21, 2018, decision of the BIA 15 affirming an October 25, 2017, decision of an Immigration 16 Judge (“IJ”) denying asylum, withholding of removal, and 17 relief under the Convention Against Torture (“CAT”). In re 18 Madhav Darji, No. A205 727 174 (B.I.A. Aug. 21, 2018), aff’g 19 No. A205 727 174 (Immig. Ct. N.Y. City Oct. 25, 2017). We 20 assume the parties’ familiarity with the underlying facts and 21 procedural history. 22 We review the agency’s adverse credibility determination 23 under the substantial evidence standard. See 8 U.S.C. 24 § 1252(b)(4); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d 25 Cir. 2018). “Considering the totality of the circumstances, 26 and all relevant factors, a trier of fact may base a

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1 credibility determination on the demeanor, candor, or 2 responsiveness of the applicant . . . , the consistency 3 between the applicant’s or witness’s written and oral 4 statements . . . , the internal consistency of each such 5 statement, the consistency of such statements with other 6 evidence of record . . . and any inaccuracies or falsehoods 7 in such statements, without regard to whether an 8 inconsistency, inaccuracy, or falsehood goes to the heart of 9 the applicant’s claim, or any other relevant factor.” 8 10 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s 11 credibility determination unless, from the totality of the 12 circumstances, it is plain that no reasonable fact-finder 13 could make such an adverse credibility ruling.” Xiu Xia Lin 14 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei 15 Gao, 891 F.3d at 76. Here, the agency’s adverse credibility 16 determination is supported by substantial evidence, including 17 inconsistencies in Darji’s testimony. 18 Although Darji asserted that he and his family were 19 targeted by Maoists, the IJ was reasonably skeptical based on 20 the fact that Darji’s testimony was unclear and difficult to 21 follow. See 8 U.S.C. § 1158(b)(1)(B)(iii). We “give 22 particular deference to [credibility determinations] that are

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1 based on the adjudicator’s observation of the 2 applicant’s demeanor,” particularly “where, as here, [the 3 observations] are supported by specific examples of 4 inconsistent testimony.” Li Hua Lin v. U.S Dep’t of Justice, 5 453 F.3d 99, 109 (2d Cir. 2006). The record supports the 6 IJ’s assessment of Darji’s testimony because it reflects his 7 varying and unclear answers as to whether he was a member of 8 the Nepali Congress Party (“NCP”), the difference between the 9 NCP and the Nepali Student Union, and why his original asylum 10 application placed him in India during a large part of his 11 alleged persecution in Nepal. 12 The agency also reasonably relied on inconsistencies in 13 the evidence presented by the petitioner. Darji’s statements 14 at his credible fear interview conflicted with his testimony, 15 and he omitted incidents of persecution during the interview. 16 As an initial matter, the interview record bore sufficient 17 “hallmarks of reliability” because the interview was 18 memorialized in a typewritten list of questions and 19 answers, Darji had an interpreter, his responses indicated 20 that he understood the questions, and the interview included 21 questions about past harm and fear of future harm as needed 22 to elicit an asylum claim. See Ming Zhang v. Holder, 585

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1 F.3d 715, 725 (2d Cir. 2009). Significantly, Darji’s 2 testimony and interview statement were inconsistent with 3 respect to where a 2000 incident occurred, whether Maoists 4 beat him or his father during that incident, and how much 5 money they demanded. As a result, the IJ was not compelled 6 to accept Darji’s assertion that he provided the same 7 information to the interpreter at the interview as he 8 testified to at the hearing, particularly as the interview 9 record indicates that Darji understood the interpreter. See 10 Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A 11 petitioner must do more than offer a plausible explanation 12 for his inconsistent statements to secure relief; he must 13 demonstrate that a reasonable fact-finder would be compelled 14 to credit his testimony.” (internal quotation marks and 15 citations omitted)). Nor did the IJ err in relying on Darji’s 16 failure to mention 2008 and 2011 interactions with the Maoists 17 during the interview especially since those were more recent 18 incidents central to his claim. See Hong Fei Gao, 891 F.3d 19 at 78–79 (weight given to an omission depends, in part, on 20 whether “facts are ones that a credible petitioner would 21 reasonably have been expected to disclose under the relevant 22 circumstances”).

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1 The agency also reasonably relied on inconsistencies 2 between Darji’s original and amended asylum applications. 3 See 8 U.S.C. § 1158(b)(1)(B)(iii). For example, his original 4 application only mentioned incidents in 2000 and 2005, while 5 his amended application included details from incidents in 6 2008 and 2011. As noted above, the IJ did not err in relying 7 on these omissions, which went to the heart of Darji’s asylum 8 claim. See Hong Fei Gao, 891 F.3d at 78–81. The IJ was not 9 required to credit Darji’s explanation that he had planned to 10 include these incidents in his personal statement because he 11 did not include any such statement with his original 12 application. See Majidi, 430 F.3d at 80. 13 The IJ also reasonably relied on various inconsistencies 14 between Darji’s testimony and his wife’s letter. 15 See 8 U.S.C. § 1158(b)(1)(B)(iii). For instance, while both 16 referenced a 2008 confrontation between Darji and the 17 Maoists, Darji did not allege any physical harm, while his 18 wife’s letter stated that the Maoists beat him mercilessly. 19 Darji and his wife also provided different descriptions of 20 the 2011 incident, with Darji testifying that he was with one 21 friend, and his wife indicating that he was with multiple 22 friends. Lastly, Darji’s wife described Darji’s father’s

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1 2016 beating, which Darji did not even mention in his detailed 2 written statement filed just months after the alleged 3 beating. 4 Because Darji’s testimony was in question, the IJ 5 reasonably relied on his failure to rehabilitate his 6 testimony with reliable corroborating evidence. See Biao 7 Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An 8 applicant’s failure to corroborate his or her testimony may 9 bear on credibility, because the absence of corroboration in 10 general makes an applicant unable to rehabilitate testimony 11 that has already been called into question.”). Moreover, the 12 IJ did not abuse her discretion by giving limited weight to 13 letters from Darji’s family, friend, employer, and 14 organizations because the authors were not available for 15 cross-examination and some of them were interested parties. 16 See Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) (“We 17 defer to the agency’s determination of the weight afforded to 18 an alien’s documentary evidence.”); see also In re H-L-H- & 19 Z-Y-Z-, 25 I. & N. Dec. 209, 215 (BIA 2010) (letters from 20 alien’s friends and family were insufficient to provide 21 substantial support for alien’s claims because they were from 22 interested witnesses not subject to cross-examination),

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1 overruled on other grounds by Hui Lin Huang v. Holder, 677 2 F.3d 130, 133–38 (2d Cir. 2012). The IJ was likewise 3 justified in giving limited weight to Darji’s hospital 4 records, which provided treatment dates that predated the 5 alleged hospitalization. 6 Given the inconsistencies and the lack of reliable 7 corroboration, we find that the IJ’s adverse credibility 8 determination was supported by substantial evidence. See 9 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. 10 And since Darji’s claims for asylum, withholding of removal, 11 and CAT relief are all based on the same factual predicates, 12 the IJ’s adverse credibility determination disposes of all 13 three forms of relief. See Paul v. Gonzales, 444 F.3d 148, 14 156–57 (2d Cir. 2006). 15 For the foregoing reasons, the petition for review is 16 DENIED. All pending motions and applications are DENIED and 17 stays VACATED.

18 FOR THE COURT: 19 Catherine O’Hagan Wolfe, 20 Clerk of Court