Nduwimana v. Barr

• Court: Court of Appeals for the Second Circuit
• Decided: September 14, 2020
• Docket: 18-1690
• Status: Unpublished

Opinion

18-1690 Nduwimana v. Barr BIA Reid, IJ A213 045 920 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.

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 14th day of September, two thousand twenty.

PRESENT: ROBERT A. KATZMANN, RAYMOND J. LOHIER, JR., STEVEN J. MENASHI, Circuit Judges. _____________________________________

APOLLINAIRE NDUWIMANA, Petitioner,

v. 18-1690 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: William J. Harrington, Allison R. Klein, Goodwin Procter LLP, New York, NY.

FOR RESPONDENT: Ethan P. Davis, Acting Assistant Attorney General; Leslie McKay, Senior Litigation Counsel; Christina P. Greer, 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 Apollinaire Nduwimana, a native and citizen

of Burundi, seeks review of a May 9, 2018 decision of the

BIA affirming a December 7, 2017 decision of an Immigration

Judge (“IJ”) denying Nduwimana’s application for asylum,

withholding of removal, and relief under the Convention

Against Torture (“CAT”). See In re Apollinaire Nduwimana,

No. A 213 045 920 (B.I.A. May 9, 2018), aff’g No. A 213 045

920 (Immig. Ct. Batavia Dec. 7, 2017). We assume the

parties’ familiarity with the underlying facts, procedural

history of the case, and issues on appeal.

“We review the IJ’s decision as modified by the BIA,

i.e., minus the arguments for denying relief” that the BIA

declined to reach. Urgen v. Holder, 768 F.3d 269, 272 (2d

Cir. 2014) (per curiam).1 The standards of review are well

1 Unless otherwise indicated, in quoting cases, all internal quotation marks, alterations, emphases, footnotes, and citations are omitted.

2 established. See 8 U.S.C. § 1252(b)(4); Hong Fei Gao v.

Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing adverse

credibility determination for substantial evidence).

The agency may, considering the totality of the

circumstances, base a credibility finding on an asylum

applicant’s “demeanor, candor, or responsiveness,”

plausibility of his account, and inconsistencies in his

statements or between his statements and other evidence,

without regard to whether they go “to the heart of the

applicant’s claim, or any other relevant factor.” 8 U.S.C.

§ 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.

Although at least one reason that the IJ provided for

its adverse credibility determination may not be supported

by substantial evidence,2 the agency’s overall adverse

2 For instance, to the extent the agency found it implausible that Nduwimana was able to leave the country while a warrant for his arrest was outstanding, the record suggests that this is indeed what happened: there is no dispute that Nduwimana flew from Burundi to the United States on or about May 26, 2017, and a signed copy of the warrant, dated May 7, 2017, was admitted into evidence. 3 credibility determination, based on other proffered reasons,

is supported by substantial evidence:

First, the IJ reasonably relied on an implausibility

finding regarding certain aspects of Nduwimana’s testimony

on his departure from Burundi. See 8 U.S.C. §

1158(b)(1)(B)(iii); Wensheng Yan v. Mukasey, 509 F.3d 63, 66

(2d Cir. 2007) (“It is well settled that, in assessing the

credibility of an asylum applicant’s testimony, an IJ is

entitled to consider whether the applicant’s story is

inherently implausible.”). Specifically, the agency

reasonably found it implausible that the men who destroyed

Nduwimana’s house, kidnapped him, beat him up, and nearly

killed him would, on the very same day, ultimately

facilitate his safe passage out of the country by, for

instance, calling the airport ahead of time. See Siewe v.

Gonzales, 480 F.3d 160, 168–69 (2d Cir. 2007) (“The

speculation that inheres in inference is not ‘bald’ if the

inference is made available to the factfinder by record

facts, or even a single fact, viewed in the light of common

sense and ordinary experience.”).

Second, the agency reasonably relied on Nduwimana’s

demeanor, finding he was hesitant or unresponsive when

confronted with certain aspects of his claim, including his

4 wife’s health and the last time they had spoken, and whether

he had ever been physically harmed based on his ethnicity.

See 8 U.S.C. § 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430

F.3d 77, 81 n.1 (2d Cir. 2005). The demeanor finding is

supported by the record.

Third, the agency reasonably relied on the fact that

Nduwimana omitted to mention in his asylum application that

his mother and brother had been killed because of their

ethnicity. When the asylum application form explicitly asks

whether a family member has “ever experienced harm or

mistreatment or threats in the past by anyone,” Certified

Admin. Record 438, “a credible petitioner” in Nduwimana’s

position “would reasonably have been expected to disclose”

the murders of family members, because their ethnic identity

would have been directly probative to one’s claim of fear

based on his ethnicity. Hong Fei Gao, 891 F.3d at 79.

Fourth, the agency reasonably relied on Nduwimana’s

admitted false statement to Canadian border officials.

Although it is “unreasonable to penalize an applicant for

lying to escape persecution itself,” Rui Ying Lin v.

Gonzales, 445 F.3d 127, 134 (2d Cir. 2006), Nduwimana was

not fleeing the danger in Burundi by the time he had arrived

at the U.S.-Canadian border. Accordingly, his lies to

5 Canadian border officials may weigh against his credibility.

Finally, we agree with Nduwimana that the agency should

have more thoroughly addressed Nduwimana’s corroborating

documentary evidence and country conditions in Burundi,

because the agency is required to consider the totality of

the record and provide a reasoned decision. See Wei Guang

Wang v. Bd. of Immigration Appeals, 437 F.3d 270, 275 (2d

Cir. 2006); Poradisova v. Gonzales, 420 F.3d 70, 81 (2d Cir.

2005). However, under the circumstances of this case, the

agency did not abuse its discretion by declining to credit

corroborating evidence whose reliability and authenticity

depended on Nduwimana’s credibility. See 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.”); Siewe, 480 F.3d at 170

(“An IJ may, either expressly or impliedly . . . discredit

evidence that does not benefit from corroboration or

authentication independent of the petitioner’s own

credibility.”). Moreover, as the agency explained, the

affidavits from friends, family, and colleagues in Burundi

did not resolve the problems noted above, because they did

not render Nduwimana’s departure more plausible, ameliorate

the demeanor or omission issues, or negate his false

6 statements to Canadian border officials. Given Nduwimana’s

lack of credibility -- which called into question whether he

was targeted by the Burundian government or security forces

-- we decline to remand for further consideration country

conditions evidence because the evidence of the targeting of

some Tutsis did not rehabilitate Nduwimana’s credibility as

to his own experiences. See Jian Hui Shao v. Mukasey, 546

F.3d 138, 169 (2d Cir. 2008) (noting that agency is not

required to “expressly parse” all of the evidence).

Given the “totality of the circumstances,” the agency’s

adverse credibility determination is supported by

substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii).

That determination was dispositive of asylum, withholding of

removal, and CAT relief because all three claims were based

on the same factual predicate. See Paul v. Gonzales, 444

F.3d 148, 156–57 (2d Cir. 2006).

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