Khatri v. Garland

Opinion

20-1718 Khatri v. Garland BIA

Wright, IJ

A205 657 543

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 10th day of January, two thousand twenty- 5 three. 6 7 PRESENT: 8 RICHARD J. SULLIVAN, 9 WILLIAM J. NARDINI, 10 EUNICE C. LEE, 11 Circuit Judges. 12 _____________________________________ 13 14 JHAM BAHADUR KHATRI, 15 Petitioner, 16 17 v. 20-1718 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Jason Schaffer, New York, NY. 25 26 FOR RESPONDENT: Brian Boynton, Acting Assistant 27 Attorney General; Melissa Neiman- 28 Kelting, Assistant Director;

1 Elizabeth K. Ottman, 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 Jham Bahadur Khatri, a native and citizen of 11 Nepal, seeks review of a May 7, 2020, decision of the BIA 12 affirming a July 18, 2018 decision of an Immigration Judge 13 (“IJ”) denying his application for asylum, withholding of 14 removal, and relief under the Convention Against Torture 15 (“CAT”). In re Jham Bahadur Khatri, No. A205 657 543 (B.I.A. 16 May 7, 2020), aff’g No. A205 657 543 (Immigr. Ct. N.Y. City 17 July 18, 2018). We assume the parties’ familiarity with the 18 underlying facts and procedural history. 19 We have reviewed the IJ’s decision as modified by the 20 BIA, that is, excluding the demeanor finding on which the BIA 21 did not rely. See Xue Hong Yang v. U.S. Dep’t of Just., 426 22 F.3d 520, 522 (2d Cir. 2005). The applicable standards of 23 review are well established. See 8 U.S.C. § 1252(b)(4)(B) 24 (“[T]he administrative findings of fact are conclusive unless

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1 any reasonable adjudicator would be compelled to conclude to 2 the contrary.”); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 3 (2d Cir. 2018) (reviewing adverse credibility determination 4 under a substantial-evidence standard). “Considering the 5 totality of the circumstances, and all relevant factors, a 6 trier of fact may base a credibility determination on the 7 demeanor, candor, or responsiveness of the applicant or 8 witness, the inherent plausibility of the applicant’s or 9 witness’s account, the consistency between the applicant’s or 10 witness’s written and oral statements . . . , the internal 11 consistency of each such statement, [and] the consistency of 12 such statements with other evidence of record . . . without 13 regard to whether an inconsistency, inaccuracy, or falsehood 14 goes to the heart of the applicant’s claim, or any other 15 relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer 16 . . . to an IJ’s credibility determination unless, from the 17 totality of the circumstances, it is plain that no reasonable 18 fact-finder could make such an adverse credibility ruling.” 19 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); 20 accord Hong Fei Gao, 891 F.3d at 76. Substantial evidence 21 supports the agency’s adverse credibility determination.

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1 Khatri alleged that Maoists threatened him and his 2 family, beat and kidnapped him, and beat his wife on account 3 of their support of the opposing National Democratic Party. 4 In concluding that this claim was not credible, the agency 5 reasonably relied on the inconsistency between Khatri’s 6 testimony that he had reviewed his written statement with 7 someone at his attorney’s office and knew its contents and 8 his later allegation that he did not know the contents, a 9 contradiction between Khatri’s written statement and some of 10 his testimony regarding whether he had any personal 11 interaction with the Maoists before he was kidnapped, and a 12 contradiction between his testimony and a police letter 13 regarding the date his wife was assaulted. See 8 U.S.C. 14 § 1158(b)(1)(B)(iii). 15 Khatri waived any challenge to the first ground by not 16 addressing it in his appellate brief. See Yueqing Zhang v. 17 Gonzales, 426 F.3d 540, 541 n.1 (2d Cir. 2005) (issues not 18 argued in briefs are waived). As to the second, Khatri’s 19 written statement and his testimony on cross-examination were 20 inconsistent as to whether Maoists threatened him directly a 21 few months prior to his kidnapping, or whether the kidnapping

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1 was their first direct interaction with Maoists and earlier 2 threats were directed to his father. Contrary to Khatri’s 3 argument, confusion resulting from differing calendars could 4 not resolve this discrepancy because it concerned whether the 5 kidnapping was Khatri’s first or second interaction with the 6 Maoists, not the dates of those interactions. The agency was 7 not required to accept Khatri’s explanation that the 8 inconsistencies occurred because he was describing traumatic 9 events that occurred more than a decade earlier, particularly 10 as he had provided a specific description including dates in 11 his written statement. See Majidi v. Gonzales, 430 F.3d 77, 12 80 (2d Cir. 2005) (“A petitioner must do more than offer a 13 plausible explanation for his inconsistent statements to 14 secure relief; he must demonstrate that a reasonable fact- 15 finder would be compelled to credit his testimony.” (internal 16 quotation marks omitted)). 17 Khatri also testified that his wife was assaulted on a 18 different date than the date reflected on a police letter 19 regarding that assault. The IJ was not required to accept 20 Khatri’s explanation that the letter was mistaken as he 21 submitted it to corroborate his claim. Id.; see also Siewe

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1 v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“Decisions as 2 to . . . which of competing inferences to draw are entirely 3 within the province of the trier of fact.”(internal quotation 4 marks omitted)). 5 These inconsistencies call into question Khatri’s and 6 his wife’s interactions with the Maoists, and thus constitute 7 substantial evidence for the agency’s adverse credibility 8 determination. See Xiu Xia Lin, 534 F.3d at 167; see also 9 Likai Gao v. Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020) 10 (“[E]ven a single inconsistency might preclude an alien from 11 showing that an IJ was compelled to find him credible. 12 Multiple inconsistencies would so preclude even more 13 forcefully.”). The agency properly concluded that this 14 determination was dispositive of asylum, withholding of 15 removal, and CAT relief, because all three of Khatri’s claims 16 are based on the same factual predicate. See Paul v. 17 Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006). Under these 18 circumstances, the agency was not required to explicitly 19 discuss the background evidence of conditions in Nepal, or 20 separately analyze Khatri’s CAT claim. See id.; see also Zhi 21 Yun Gao v. Mukasey, 508 F.3d 86, 87 (2d Cir. 2007) (holding

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1 that where the agency gives “reasoned consideration to the 2 petition, and ma[kes] adequate findings,” it is not required 3 to “expressly parse or refute on the record each individual 4 argument or piece of evidence offered by the petitioner” 5 (quotation marks omitted)). Moreover, Khatri does not cite 6 any country conditions evidence to support his CAT claim. 7 For the foregoing reasons, the petition for review is 8 DENIED. All pending motions and applications are DENIED and 9 stays VACATED.

10 FOR THE COURT: 11 Catherine O’Hagan Wolfe, 12 Clerk of Court