Kumar v. Garland

Opinion

22-6499 Kumar v. Garland BIA Brennan, IJ A205 804 614

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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 10th day of January, two thousand twenty-five.

PRESENT: JON O. NEWMAN, JOSEPH F. BIANCO, EUNICE C. LEE, Circuit Judges. _____________________________________

SUNIL KUMAR, Petitioner,

v. 22-6499 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Jaspreet Singh, Law Office of Jaspreet Singh, Richmond Hill, NY. FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant Attorney General; Brianne Whelan Cohen, Senior Litigation Counsel; Lindsay Dunn, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a Board of

Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND

DECREED that the petition for review is DENIED.

Petitioner Sunil Kumar, a native and citizen of India, seeks review of a

September 27, 2022 decision of the BIA, affirming a July 2, 2019 decision of an

Immigration Judge (“IJ”), which denied his application for asylum, withholding

of removal, and relief under the Convention Against Torture (“CAT”). In re

Kumar, No. A 205 804 614 (B.I.A. Sept. 27, 2022), aff’g No. A 205 804 614 (Immigr.

Ct. N.Y.C. July 2, 2019). We assume the parties’ familiarity with the underlying

facts and procedural history.

We have reviewed both the IJ’s and the BIA’s decisions “for the sake of

completeness.” 1 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.

1 We review the agency’s decisions as to credibility, but do not consider the IJ’s denial of the asylum claim as time-barred because the BIA did not rely on that finding. See Xue Hong Yang v. U.S. Dep’t of Just., 426 F.3d 520, 522 (2d Cir. 2005). 2 2006). We review the agency’s factual findings, including adverse credibility

determinations, for substantial evidence, and we review questions of law and the

application of law to fact de novo. Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d

Cir. 2018). “[T]he administrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary.”

8 U.S.C. § 1252(b)(4)(B).

“Considering the totality of the circumstances, and all relevant factors, a

trier of fact may base a credibility determination on . . . the consistency between

the applicant’s or witness’s written and oral statements . . . , the internal

consistency of each such statement, the consistency of such statements with other

evidence of record . . . , and any inaccuracies or falsehoods in such statements,

without regard to whether an inconsistency, inaccuracy, or falsehood goes to the

heart of the applicant’s claim, or any other relevant factor.” Id. § 1158(b)(1)(B)(iii).

“We defer . . . to an IJ’s credibility determination unless, from the totality of the

circumstances, it is plain that no reasonable fact-finder could make such an

adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.

2008); accord Hong Fei Gao, 891 F.3d at 76. In this case, we find substantial

evidence supports the agency’s determination that Kumar was not credible as to

3 his claim that he was arrested and beaten for marrying a woman outside his caste.

As the agency found, Kumar’s testimony deviated from the timeline in his

written affidavit and was internally inconsistent. For instance, Kumar wrote that

he met his wife in 2008, but testified during the removal hearing that they met in

2006 or 2007. He testified that he returned to India permanently from Saudi

Arabia in 2010, but also that he did not travel to Saudi Arabia after his 2009

marriage; and when asked to explain, he said that he had misspoken and changed

his testimony to conform with his written statement. Further, Kumar initially

testified that he was arrested in India on June 6, 2011 (nearly a year after his

affidavit said he left the country); he then testified that he was arrested on June 3

or 6, 2010, and that he had previously misspoken; and then testified that he was

arrested on June 3, 2010. He also testified on direct examination that he left India

for the United States in July or August 2011; but on cross-examination, he said he

was mistaken and had left a year earlier, in August 2010. And he wrote that he

was in Ecuador “for almost two months” en route to the United States, but testified

first that he was there three or four months, then that he was there two or three

months.

Kumar argues that these inconsistencies identified by the IJ were explained

4 and too trivial to support an adverse credibility determination. He contends that

the time between the events in India and his 2019 hearing affected his ability to

remember dates. However, he did not offer that explanation to the IJ, and it is

not compelling, as he provided the dates in 2017 (seven years after he left India)

when revising his affidavit. Moreover, the agency was not required to accept

Kumar’s explanations that he had trouble remembering dates, misspoke, or was

mistaken. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must

do more than offer a plausible explanation for his inconsistent statements to secure

relief; he must demonstrate that a reasonable fact-finder would be compelled to

credit his testimony.” (internal quotation marks and citation omitted)). The IJ “is

in the best position to discern . . . whether a witness who hesitated in a response

was nevertheless attempting to truthfully recount what he recalled of key events

or struggling to remember the lines of a carefully crafted script; and whether

inconsistent responses are the product of innocent error or intentional falsehood.”

Id. at 81 n.1 (internal quotation marks omitted). Additionally, while “minor and

isolated” date discrepancies “need not be fatal to credibility,” here there were

multiple discrepancies, and Kumar gave widely varying dates for events that were

central to his claim (e.g., when he met his wife). Diallo v. INS, 232 F.3d 279, 288

5 (2d Cir. 2000). The agency may also consider the cumulative effect of even minor

inconsistencies when evaluating an applicant’s credibility. See Xiu Xia Lin, 534

F.3d at 167.

The absence of reliable corroboration bolsters the adverse credibility

determination. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An

applicant’s failure to corroborate his . . . testimony may bear on credibility, because

the absence of corroboration in general makes an applicant unable to rehabilitate

testimony that has already been called into question.”). Kumar submitted

affidavits from a friend, his parents, and a village leader to corroborate that his

wife’s parents opposed their marriage, and that he was arrested and beaten. The

agency did not err in giving the affidavits limited weight because the affiants were

unavailable for cross-examination, and some were interested parties. See Likai

Gao v. Barr, 968 F.3d 137, 149 (2d Cir. 2020) (holding that an “IJ acted within her

discretion in according [letters] little weight because the declarants (particularly

[the applicant]’s wife) were interested parties and neither was available for cross-

examination”); Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) (“We generally defer

to the agency’s evaluation of the weight to be afforded an applicant’s documentary

evidence.”).

6 Moreover, instead of resolving the inconsistency regarding the date of

Kumar’s arrest, three of the letters alleged that he was arrested in January 2010—

which is different from the three dates Kumar gave. The agency did not err in

relying on inconsistencies between Kumar’s statements and those of his witnesses,

and the agency was not required to accept his explanations that his mother was

uneducated and his friend was mistaken because multiple affiants made the same

mistake. See 8 U.S.C. § 1158(b)(1)(B)(iii); Majidi, 430 F.3d at 80. And while

Kumar argues that the agency overlooked country conditions evidence, “we

presume that [the agency] has taken into account all of the evidence before [it],

unless the record compellingly suggests otherwise,” Xiao Ji Chen v. U.S. Dep’t of

Just., 471 F.3d 315, 336 n.17 (2d Cir. 2009), and the record does not so suggest given

that the country conditions evidence did not corroborate Kumar’s specific

allegations of abuse or his timeline of events, and Kumar has not argued that

evidence independent of his credibility satisfied his burden of proof.

Taken together, the multiple inconsistencies and lack of reliable

corroboration provide substantial evidence for the adverse credibility

determination. See Likai Gao, 968 F.3d at 145 n.8 (“[E]ven a single inconsistency

might preclude an alien from showing that an IJ was compelled to find him

7 credible. Multiple inconsistencies would so preclude even more forcefully.”); Xiu

Xia Lin, 534 F.3d at 167; Biao Yang, 496 F.3d at 273. The adverse credibility

determination is dispositive because asylum, withholding of removal, and CAT

relief all relied on the same facts. 2 See Hong Fei Gao, 891 F.3d at 76 (“Where the

same factual predicate underlies a petitioner’s claims for asylum, withholding of

removal, and protection under the CAT, an adverse credibility determination

forecloses all three forms of relief.”).

For the foregoing reasons, the petition for review is DENIED. All pending

motions and applications are DENIED and stays VACATED.

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

2 Because the adverse credibility determination is dispositive, we need not reach the BIA’s finding that Kumar waived withholding of removal and CAT relief. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.”). 8