16‐2565 Maharjan v. Sessions BIA Cheng, IJ A087 787 839 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 ASUMMARY 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 for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, 3 in the City of New York, on the 16th day of October, two thousand eighteen. 4 5 PRESENT: JOHN M. WALKER, JR., 6 RAYMOND J. LOHIER, JR., 7 Circuit Judges, 8 WILLIAM H. PAULEY III,* 9 District Judge. 10 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 11 SABIN MAHARJAN, 12 13 Petitioner, 14 15 v. No. 16‐2565‐ag 16 17 JEFFERSON B. SESSIONS III, 18 UNITED STATES ATTORNEY GENERAL, 19
* Judge William H. Pauley III, of the United States District Court for the Southern District of New York, sitting by designation. 1 Respondent. 2 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 3 FOR PETITIONER: KHAGENDRA GHARTI‐ 4 CHHETRY, Chhetry & 5 Associates, P.C., New York, 6 NY. 7 8 FOR RESPONDENT: ROBERT D. TENNYSON, JR., Trial 9 Attorney (Chad A. Readler, 10 Acting Assistant Attorney 11 General, Nancy E. Friedman, 12 Senior Litigation Counsel, 13 Sharon M. Clay, Trial 14 Attorney, on the brief), Office of 15 Immigration Litigation, United 16 States Department of Justice, 17 Washington, DC. 18 19 UPON DUE CONSIDERATION of this petition for review of a Board of
20 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED,
21 AND DECREED that the petition is GRANTED.
22 Petitioner Sabin Maharjan, a native and citizen of Nepal, seeks review of a
23 June 29, 2016 decision of the BIA affirming a January 14, 2015 decision of an
24 Immigration Judge (“IJ”) denying Maharjan’s application for asylum,
25 withholding of removal, and relief under the Convention Against Torture
26 (“CAT”). In re Sabin Maharjan, No. A 087 787 839 (B.I.A. June 29, 2016), aff’g
1 No. A 087 787 839 (Immig. Ct. N.Y. City Jan. 14, 2015). We assume the parties’
2 familiarity with the underlying facts and procedural history of this case.
3 Under the circumstances of this case, we review both the IJ’s and BIA’s
4 decisions “for the sake of completeness.” Wangchuck v. Dep’t of Homeland
5 Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review an adverse credibility
6 determination for substantial evidence. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin
7 v. Mukasey, 534 F.3d 162, 165–66 (2d Cir. 2008). The agency may,
8 “[c]onsidering the totality of the circumstances,” base an adverse credibility
9 ruling on the following factors:
10 [T]he consistency between the applicant’s or witness’s written and 11 oral statements . . . , the consistency of such statements with other 12 evidence of record . . . , and any inaccuracies or falsehoods in such 13 statements, without regard to whether an inconsistency, inaccuracy, 14 or falsehood goes to the heart of the applicant’s claim, or any other 15 relevant factor.
16 8 U.S.C. § 1158(b)(1)(B)(iii). “[A]n IJ may rely on any inconsistency or omission
17 in making an adverse credibility determination as long as the ‘totality of the
18 circumstances’ establishes that an asylum applicant is not credible.” Xiu Xia
19 Lin, 534 F.3d at 167.
20 Since the agency’s decision in this case, we have clarified the standards
21 pursuant to which the agency may rely on omissions. “[A]lthough IJs may rely 3
1 on non‐material omissions and inconsistencies, not all omissions and
2 inconsistencies will deserve the same weight.” Hong Fei Gao v. Sessions, 891
3 F.3d 67, 77 (2d Cir. 2018). Instead, the agency must “distinguish between (1)
4 omissions that arise merely because an applicant’s oral testimony is more
5 detailed than his or her written application, and (2) omissions that tend to show
6 that an applicant has fabricated his or her claim.” Id. at 82. Because the
7 omissions in this case are very similar to those at issue in Hong Fei Gao, we
8 remand for the agency to reconsider the adverse credibility determination. See
9 id. at 79–81.
10 First, the agency relied on the omission from Maharjan’s asylum
11 application and his father’s letter of a January 2008 phone call from Maharjan’s
12 attackers. Maharjan’s application and his father’s letter reported that Maoists
13 shot at Maharjan in January 2008. The application and letter also stated that the
14 Maoists called Maharjan’s family after the shooting to inquire about him and to
15 get information about him. However, neither the application nor the letter
16 specified that the Maoists called Maharjan’s father within days of the shooting
17 and claimed responsibility for it. On cross‐examination, when Maharjan was
18 asked how he knew that the people who shot at him were Maoists, Maharjan
1 responded that the Maoists called his father on January 9, 2008 (three days after
2 the shooting), claimed responsibility for the shooting, and stated that the
3 shooting was a warning to Maharjan. Maharjan gave two explanations for the
4 omission: that neither he nor his father thought it was necessary to include the
5 call, and that he did not know anyone other than the Maoists who would shoot
6 at him. On the one hand, the January 2008 call is significant because it directly
7 links the shooting to the Maoists, and Maharjan’s description of other calls from
8 the Maoists undermines his explanation that he did not know this type of
9 information was important. But Hong Fei Gao clarified that this type of
10 omission is not so probative of credibility: “[W]here the belatedly recollected
11 facts merely augment that which was originally described, the prior silence is
12 often simply too ambiguous to have any probative force . . . .” 891 F.3d at 78
13 (quotation marks omitted). An omission that surfaces during cross‐examination
14 or IJ questioning is even less probative because “[i]t [i]s not as though
15 [petitioners] volunteered the information on direct examination in an effort to
16 falsely buttress their claims through testimony.” Id. at 80. And a third party’s
17 omissions (like those in Maharjan’s father’s letter) should not be held against the
1 applicant unless the omissions create an inconsistency with the applicant’s own
2 statements. Id. at 81.
3 Second, Maharjan’s application also reported “minor injuries and bruises”
4 that were treated at a medical facility after a November 2008 beating by the
5 Maoists. Certified Administrative Record (“CAR”) at 601. He submitted a
6 hospital record stating that the treatment was for “injuries in the head” and
7 “minor injuries and bruises.” Id. at 583. But Maharjan expanded on those
8 statements at the hearing.
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16‐2565 Maharjan v. Sessions BIA Cheng, IJ A087 787 839 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 ASUMMARY 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 for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, 3 in the City of New York, on the 16th day of October, two thousand eighteen. 4 5 PRESENT: JOHN M. WALKER, JR., 6 RAYMOND J. LOHIER, JR., 7 Circuit Judges, 8 WILLIAM H. PAULEY III,* 9 District Judge. 10 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 11 SABIN MAHARJAN, 12 13 Petitioner, 14 15 v. No. 16‐2565‐ag 16 17 JEFFERSON B. SESSIONS III, 18 UNITED STATES ATTORNEY GENERAL, 19
* Judge William H. Pauley III, of the United States District Court for the Southern District of New York, sitting by designation. 1 Respondent. 2 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 3 FOR PETITIONER: KHAGENDRA GHARTI‐ 4 CHHETRY, Chhetry & 5 Associates, P.C., New York, 6 NY. 7 8 FOR RESPONDENT: ROBERT D. TENNYSON, JR., Trial 9 Attorney (Chad A. Readler, 10 Acting Assistant Attorney 11 General, Nancy E. Friedman, 12 Senior Litigation Counsel, 13 Sharon M. Clay, Trial 14 Attorney, on the brief), Office of 15 Immigration Litigation, United 16 States Department of Justice, 17 Washington, DC. 18 19 UPON DUE CONSIDERATION of this petition for review of a Board of
20 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED,
21 AND DECREED that the petition is GRANTED.
22 Petitioner Sabin Maharjan, a native and citizen of Nepal, seeks review of a
23 June 29, 2016 decision of the BIA affirming a January 14, 2015 decision of an
24 Immigration Judge (“IJ”) denying Maharjan’s application for asylum,
25 withholding of removal, and relief under the Convention Against Torture
26 (“CAT”). In re Sabin Maharjan, No. A 087 787 839 (B.I.A. June 29, 2016), aff’g
1 No. A 087 787 839 (Immig. Ct. N.Y. City Jan. 14, 2015). We assume the parties’
2 familiarity with the underlying facts and procedural history of this case.
3 Under the circumstances of this case, we review both the IJ’s and BIA’s
4 decisions “for the sake of completeness.” Wangchuck v. Dep’t of Homeland
5 Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review an adverse credibility
6 determination for substantial evidence. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin
7 v. Mukasey, 534 F.3d 162, 165–66 (2d Cir. 2008). The agency may,
8 “[c]onsidering the totality of the circumstances,” base an adverse credibility
9 ruling on the following factors:
10 [T]he consistency between the applicant’s or witness’s written and 11 oral statements . . . , the consistency of such statements with other 12 evidence of record . . . , and any inaccuracies or falsehoods in such 13 statements, without regard to whether an inconsistency, inaccuracy, 14 or falsehood goes to the heart of the applicant’s claim, or any other 15 relevant factor.
16 8 U.S.C. § 1158(b)(1)(B)(iii). “[A]n IJ may rely on any inconsistency or omission
17 in making an adverse credibility determination as long as the ‘totality of the
18 circumstances’ establishes that an asylum applicant is not credible.” Xiu Xia
19 Lin, 534 F.3d at 167.
20 Since the agency’s decision in this case, we have clarified the standards
21 pursuant to which the agency may rely on omissions. “[A]lthough IJs may rely 3
1 on non‐material omissions and inconsistencies, not all omissions and
2 inconsistencies will deserve the same weight.” Hong Fei Gao v. Sessions, 891
3 F.3d 67, 77 (2d Cir. 2018). Instead, the agency must “distinguish between (1)
4 omissions that arise merely because an applicant’s oral testimony is more
5 detailed than his or her written application, and (2) omissions that tend to show
6 that an applicant has fabricated his or her claim.” Id. at 82. Because the
7 omissions in this case are very similar to those at issue in Hong Fei Gao, we
8 remand for the agency to reconsider the adverse credibility determination. See
9 id. at 79–81.
10 First, the agency relied on the omission from Maharjan’s asylum
11 application and his father’s letter of a January 2008 phone call from Maharjan’s
12 attackers. Maharjan’s application and his father’s letter reported that Maoists
13 shot at Maharjan in January 2008. The application and letter also stated that the
14 Maoists called Maharjan’s family after the shooting to inquire about him and to
15 get information about him. However, neither the application nor the letter
16 specified that the Maoists called Maharjan’s father within days of the shooting
17 and claimed responsibility for it. On cross‐examination, when Maharjan was
18 asked how he knew that the people who shot at him were Maoists, Maharjan
1 responded that the Maoists called his father on January 9, 2008 (three days after
2 the shooting), claimed responsibility for the shooting, and stated that the
3 shooting was a warning to Maharjan. Maharjan gave two explanations for the
4 omission: that neither he nor his father thought it was necessary to include the
5 call, and that he did not know anyone other than the Maoists who would shoot
6 at him. On the one hand, the January 2008 call is significant because it directly
7 links the shooting to the Maoists, and Maharjan’s description of other calls from
8 the Maoists undermines his explanation that he did not know this type of
9 information was important. But Hong Fei Gao clarified that this type of
10 omission is not so probative of credibility: “[W]here the belatedly recollected
11 facts merely augment that which was originally described, the prior silence is
12 often simply too ambiguous to have any probative force . . . .” 891 F.3d at 78
13 (quotation marks omitted). An omission that surfaces during cross‐examination
14 or IJ questioning is even less probative because “[i]t [i]s not as though
15 [petitioners] volunteered the information on direct examination in an effort to
16 falsely buttress their claims through testimony.” Id. at 80. And a third party’s
17 omissions (like those in Maharjan’s father’s letter) should not be held against the
1 applicant unless the omissions create an inconsistency with the applicant’s own
2 statements. Id. at 81.
3 Second, Maharjan’s application also reported “minor injuries and bruises”
4 that were treated at a medical facility after a November 2008 beating by the
5 Maoists. Certified Administrative Record (“CAR”) at 601. He submitted a
6 hospital record stating that the treatment was for “injuries in the head” and
7 “minor injuries and bruises.” Id. at 583. But Maharjan expanded on those
8 statements at the hearing. He testified that he was hospitalized for one night
9 after he was attacked with a knife, that he had a cut on his arm and was “black
10 and blue all over [his] body,” and that he was beaten in the head with sticks and
11 bleeding badly. Id. at 132; see id. at 132–35. Finding a lack of consistency
12 between Maharjan’s testimonial descriptions and the other statements, the IJ
13 concluded that his testimony appeared to exaggerate the severity of the injuries
14 and medical treatment. But Maharjan’s testimony could also be viewed as
15 simply more detailed than the application and letter. Assuming that the knife
16 cut on Maharjan’s arm was a relatively minor injury, his description does not
17 actually contradict the hospital record. Id. at 583.
1 Third, the IJ also relied on Maharjan’s omission of the fact that his father
2 reopened his small textile factory (which he had closed in April 2008 after
3 Maoists threatened to blow it up) in February or March 2009, about a month after
4 Maharjan came to the United States. On cross‐examination, Maharjan
5 explained that he did not include this information in the asylum application
6 because, at the time he filed his application, his father had only a few employees,
7 he was not sure exactly when the factory reopened because he was in the United
8 States, and he did not think this information was important enough to mention.
9 Maharjan added that he still feared the Maoists despite this development
10 because:
11 [T]he Maoists were personally against me because of my continuation 12 of the work with the Nepali Congress Party and my opposition to the 13 Maoists[‘] activities. The[y] were not really, you know, against my 14 father or my father’s factory. So when I was out of the scene . . . my 15 father, you know, slowly started reopening the factory.
16 Id. at 145. Particularly in light of Maharjan’s explanation that the factory’s
17 reopening did not diminish his fear of the Maoists, this omission does not
18 provide significant support for an adverse credibility finding. See Hong Fei
19 Gao, 891 F.3d at 80 (noting that “asylum applicants [are not] required to list
20 every incident that occurs in the aftermath of the alleged persecution”).
1 Finally, Maharjan testified that he dropped out of his university in the
2 United States because of “mental shock,” but his application stated that he
3 stopped attending because he could not afford the tuition after his father’s
4 factory closed. CAR at 163. Maharjan explained that both were contributing
5 factors. This inconsistency is too tangential to Maharjan’s asylum claim to
6 support an adverse credibility ruling on its own. See Hong Fei Gao, 891 F.3d at
7 77–78.
8 Considering the record as a whole, the agency placed too much weight on
9 the above omissions. See id. at 79. Apart from the omissions, Maharjan
10 provided a detailed written statement and testimony consistent with his
11 application regarding the events in 2007 and 2008 that caused him to leave
12 Nepal. He corroborated his claim with letters from his father and his party,
13 party membership documents, threat letters from the Maoists, a hospital record,
14 and a small business certificate confirming his father’s ownership of the factory.
15 Accordingly, we grant the petition and remand the case for the agency to
16 reconsider its adverse credibility ruling under the clarified standard set forth in
17 Hong Fei Gao. Id. at 77.
1 For the foregoing reasons, the petition for review is GRANTED, the BIA’s
2 decision is VACATED, and the case is REMANDED to the BIA for further
3 proceedings consistent with this order.
4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, Clerk of Court