Om Chhetri v. Attorney General United States

637 F. App'x 82
CourtCourt of Appeals for the Third Circuit
DecidedJanuary 20, 2016
Docket15-1581
StatusUnpublished

This text of 637 F. App'x 82 (Om Chhetri v. Attorney General United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Om Chhetri v. Attorney General United States, 637 F. App'x 82 (3d Cir. 2016).

Opinion

OPINION *

HARDIMAN, Circuit Judge.

Om Prakash Chhetri petitions for review of an order of the Board of Immigration Appeals (BIA) denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Because the BIA’s order is supported by substantial evidence, we will deny the petition.

I

Chhetri is a native and citizen of Nepal. He entered the United States in November 2012 without documentation and was detained by the Department of Homeland Security (DHS). DHS charged Chhetri as removable under 8 U.S.C. § 1182(a)(7)(A)(i)(I) and he conceded re-movability.

Chhetri applied for asylum, withholding of removal, and relief under CAT. In support of his application, Chhetri claimed that he fears returning to Nepal because, he is at risk of being harmed or killed by Nepalese Maoists. He testified as follows: In 2008, he became a member of the Nepali Congress Party (NCP) and took active part in its political efforts. As a result, he was targeted by Maoists who threatened to kill him if he did not leave the NCP. Chhetri refused. Thereafter, he was twice beaten by Maoists and was treated at a hospital. Chhetri reported the incidents to the police, but no action was taken because the Maoists were in power. At the behest of his parents, Chhetri fled to the United States.

As documentary support for his testimony, Chhetri submitted, among other things, his Nepalese birth certificate, a letter from the NCP recognizing him as an active member, a September 9, 2013 letter from Bir Hospital certifying that he was admitted on April 28, 2011, a September 9, 2013 letter from Om Hospital certifying that he was admitted on September 16, 2011, and a threatening letter from the Young Communist League (YCL). Both *84 hospital letters and the NCP letter were written only in English. Although the letter from the YCL was translated from Nepali into English, it did not contain a statement that the translator is competent in both languages as required by 8 C.F.R. § 1003.33.

During removal proceedings, the Immigration Judge (IJ) questioned Chhetri. She expressed concern that the hospital letters were written in English rather than Nepali and that several of the translated documents were not properly certified. She also challenged Chhetri’s testimony that he had personally received the Om Hospital letter at his house in Nepal on the ground that the letter was dated September 9,2013 — almost a year after he left Nepal for the United States. Chhetri altered his testimony in response, asserting that his parents — not he — had received the letter.

The IJ denied Chhetri’s application for two reasons. First, she “did not find [Chhetri] to be credible.” App. 66. She based this finding on his “inherently improbable” testimony that he had personally received the Om Hospital letter at his house in Nepal in September 2013 after he had admitted to leaving Nepal for the United States in October 2012. Id. Second, she found his documentary evidence unreliable and therefore insufficient to corroborate his testimony. None of the documents “la[id] a reliable foundation” to establish his identity, political party affiliation, or employment because each document was either written only in English or was a translation that lacked proper certification. App. 67. With respect to his CAT claim, she added a third reason-that, “[i]n light of Nepal’s changed country conditions, [Chhetri did not establish] that he would more likely than not, be specifically targeted for torture in Nepal, with government complicity.” 1 Id.

The BIA found no clear error in the IJ’s reasoning and dismissed Chhetri’s appeal. Regarding the IJ’s adverse credibility finding, the BIA agreed that the “serious inconsistency” in Chhetri’s testimony about who had received the Om Hospital letter “fatally undermined” his credibility. App. 3. As for the IJ’s finding that Chhe-tri’s documentary evidence was unreliable, the BIA agreed that the fact that several of the documents were written only in English was “suspicious” and noted that “the great majority” of the documents “were not properly translated.” App. 4. The BIA concluded that Chhetri’s persecution claim “laek[ed] veracity” and upheld the IJ’s denial of asylum and withholding of removal. Id. It also summarily affirmed the IJ’s denial of CAT protection. Chhetri timely petitioned for review.

II

The BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3). We have jurisdiction under 8 U.S.C. § 1252(a). We review the BIA’s factual findings, including adverse credibility determinations, for substantial evidence. Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir.2005). Accordingly, we will uphold factual conclusions “unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We review the IJ’s findings under the same standard to the extent “the BIA directs us to the [IJ’s] opinion and decision.” Yusupov v. Att’y Gen., *85 650 F.3d 968, 977 (3d Cir.2011) (quoting Shah v. Att’y Gen., 446 F.3d 429, 434 (3d Cir.2006)).

A

Chhetri first argues that the BIA erred in upholding the IJ’s adverse credibility determination. He claims his statement that he received the Om Hospital letter at his house in Nepal was a misstatement and that the context provided by the rest of his testimony reveals the mistake to be an honest one. Chhetri insists that it is clear that what he meant to say was that he had seen a medication list, not the Om Hospital letter, as he “clarified repeatedly” after realizing his error. Citing caselaw for the proposition that the BIA is required to evaluate an applicant’s explanation for testimonial inconsistencies, see, e.g., Fiadjoe, 411 F,3d at 160, he contends that the BIA erred by not considering his explanation and that any reasonable adjudicator would have been persuaded by it.

We cannot say that any reasonable adjudicator would have found differently than the IJ and the BIA. As an initial matter, the BIA considered Chhetri’s explanation when it found “no clear error in [the IJ’s] finding that [Chhetri] did not reasonably explain th[e] implausibility” in his testimony. 2 App. 4. And what Chhetri calls “clarified” testimony could reasonably be called “backtracking.” Chhetri wasn’t asked merely in passing whether he had received medical records at his house in Nepal.

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637 F. App'x 82, Counsel Stack Legal Research, https://law.counselstack.com/opinion/om-chhetri-v-attorney-general-united-states-ca3-2016.