20-3037 Ranabhat v. Garland BIA Douchy, IJ A208 685 937 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 21st day of November, two thousand twenty- 5 two. 6 7 PRESENT: 8 ROSEMARY S. POOLER, 9 JOSEPH F. BIANCO, 10 WILLIAM J. NARDINI, 11 Circuit Judges. 12 _____________________________________ 13 14 GHANSHYAM RANABHAT, 15 Petitioner, 16 17 v. 20-3037 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Dilli Raj Bhatta, Esq., New York, 25 NY. 26 27 FOR RESPONDENT: Brian Boynton, Acting Assistant 28 Attorney General; Carl McIntyre, 1 Assistant Director; Gregory A. 2 Pennington, Jr., Trial Attorney, 3 Office of Immigration Litigation, 4 United States Department of 5 Justice, Washington, 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 Ghanshyam Ranabhat, a native and citizen of
11 Nepal, seeks review of an August 10, 2020, decision of the
12 BIA affirming a May 8, 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 Ghanshyam Ranabhat, No. A 208 685 937 (B.I.A.
16 Aug. 10, 2020), aff’g No. A 208 685 937 (Immig. Ct. N.Y. City
17 May 8, 2018). We assume the parties’ familiarity with the
18 underlying facts and procedural history.
19 We have reviewed the IJ’s decision as supplemented and
20 modified by the BIA. See Xue Hong Yang v. U.S. Dep’t of
21 Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v.
22 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
23 standards of review are well established. See 8 U.S.C.
24 § 1252(b)(4)(B) (“administrative findings of fact are 2 1 conclusive unless any reasonable adjudicator would be
2 compelled to conclude to the contrary”); Hong Fei Gao v.
3 Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing adverse
4 credibility determination under substantial evidence
5 standard).
6 The IJ may, “[c]onsidering the totality of the
7 circumstances” base a credibility determination on an asylum
8 applicant’s “demeanor, candor, or responsiveness,” the
9 plausibility of his account, and inconsistencies in his
10 statements or between his statements and other evidence,
11 “without regard to whether an inconsistency, inaccuracy, or
12 falsehood goes to the heart of the applicant’s claim.”
13 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
14 adverse credibility determination unless, from the totality
15 of the circumstances, it is plain that no reasonable fact-
16 finder could make such an adverse credibility ruling.” Xiu
17 Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord
18 Hong Fei Gao, 891 F.3d at 76. Substantial evidence supports
19 the agency’s conclusion that Ranabhat was not credible as to
20 his claim that Maoists attacked him because of his affiliation
21 with the Nepali Congress Party (”NCP”).
3 1 As an initial matter, we defer to the IJ’s conclusion
2 that Ranabhat’s testimony was hesitant, evasive, and
3 nonresponsive “in recognition of the fact that the IJ’s
4 ability to observe the witness’s demeanor places her in the
5 best position to evaluate whether apparent problems in the
6 witness’s testimony suggest a lack of credibility or, rather,
7 can be attributed to an innocent cause such as difficulty
8 understanding the question.” Jin Chen v. U.S. Dep’t of
9 Justice, 426 F.3d 104, 113 (2d Cir. 2005). Moreover, the
10 record supports the finding: the IJ noted a long pause when
11 Ranabhat was questioned about when he became an active member
12 of the NCP in relation to his attack, and Ranabhat gave
13 evasive answers or expressed his confusion or surprise in
14 response to some questions.
15 The agency also reasonably relied on inconsistencies.
16 See 8 U.S.C. § 1158(b)(1)(B)(iii). Ranabhat’s testimony
17 about when he became active in the NCP conflicted with
18 supporting documents. Further, Ranabhat was inconsistent
19 about the alleged attack, treatment, and time in hiding in
20 Nepal. Ranabhat testified that he did not know any of the
21 seven people who attacked him. However, he submitted
4 1 identical letters from two friends who allegedly rescued him
2 after the attack, which stated that he was attacked “by around
3 8-10 cadres of Maoist,” and the attack was led by a local
4 Maoist leader. Ranabhat’s affidavit reflected that he “was
5 . . . hospitalized for 12 days in the hospital,” and that he
6 was “discharged from the hospital,” but a letter confirming
7 medical treatment does not mention a 12-day hospitalization,
8 and Ranabhat testified that he stayed at someone’s home near
9 the hospital and went back and forth for treatment.
10 Regarding the four years he spent in hiding in Kathmandu, he
11 variously stated that he only went outside once or twice in
12 four years, that he sometimes met up with friends, and that
13 he attended a couple of NCP events.
14 The agency also relied on Ranabhat’s failure to testify
15 about a threatening letter from Maoists referenced in a
16 corroborating statement from the NCP. Even assuming the IJ
17 erred in finding an inconsistency based on Ranabhat’s
18 omission of this fact, see Hong Fei Gao, 891 F.3d at 78
19 (“omissions are less probative of credibility than
20 inconsistencies created by direct contradictions in evidence
21 and testimony” (quotation marks omitted)), the other
5 1 inconsistencies render remand futile, see Lianping Li v.
2 Lynch, 839 F.3d 144, 149 (2d Cir. 2016) (holding that remand
3 is futile despite error where “(1) substantial evidence . .
4 . , considered in the aggregate, supports the IJ’s finding
5 that petitioner lacked credibility, and (2) disregarding
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20-3037 Ranabhat v. Garland BIA Douchy, IJ A208 685 937 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 21st day of November, two thousand twenty- 5 two. 6 7 PRESENT: 8 ROSEMARY S. POOLER, 9 JOSEPH F. BIANCO, 10 WILLIAM J. NARDINI, 11 Circuit Judges. 12 _____________________________________ 13 14 GHANSHYAM RANABHAT, 15 Petitioner, 16 17 v. 20-3037 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Dilli Raj Bhatta, Esq., New York, 25 NY. 26 27 FOR RESPONDENT: Brian Boynton, Acting Assistant 28 Attorney General; Carl McIntyre, 1 Assistant Director; Gregory A. 2 Pennington, Jr., Trial Attorney, 3 Office of Immigration Litigation, 4 United States Department of 5 Justice, Washington, 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 Ghanshyam Ranabhat, a native and citizen of
11 Nepal, seeks review of an August 10, 2020, decision of the
12 BIA affirming a May 8, 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 Ghanshyam Ranabhat, No. A 208 685 937 (B.I.A.
16 Aug. 10, 2020), aff’g No. A 208 685 937 (Immig. Ct. N.Y. City
17 May 8, 2018). We assume the parties’ familiarity with the
18 underlying facts and procedural history.
19 We have reviewed the IJ’s decision as supplemented and
20 modified by the BIA. See Xue Hong Yang v. U.S. Dep’t of
21 Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v.
22 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
23 standards of review are well established. See 8 U.S.C.
24 § 1252(b)(4)(B) (“administrative findings of fact are 2 1 conclusive unless any reasonable adjudicator would be
2 compelled to conclude to the contrary”); Hong Fei Gao v.
3 Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing adverse
4 credibility determination under substantial evidence
5 standard).
6 The IJ may, “[c]onsidering the totality of the
7 circumstances” base a credibility determination on an asylum
8 applicant’s “demeanor, candor, or responsiveness,” the
9 plausibility of his account, and inconsistencies in his
10 statements or between his statements and other evidence,
11 “without regard to whether an inconsistency, inaccuracy, or
12 falsehood goes to the heart of the applicant’s claim.”
13 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
14 adverse credibility determination unless, from the totality
15 of the circumstances, it is plain that no reasonable fact-
16 finder could make such an adverse credibility ruling.” Xiu
17 Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord
18 Hong Fei Gao, 891 F.3d at 76. Substantial evidence supports
19 the agency’s conclusion that Ranabhat was not credible as to
20 his claim that Maoists attacked him because of his affiliation
21 with the Nepali Congress Party (”NCP”).
3 1 As an initial matter, we defer to the IJ’s conclusion
2 that Ranabhat’s testimony was hesitant, evasive, and
3 nonresponsive “in recognition of the fact that the IJ’s
4 ability to observe the witness’s demeanor places her in the
5 best position to evaluate whether apparent problems in the
6 witness’s testimony suggest a lack of credibility or, rather,
7 can be attributed to an innocent cause such as difficulty
8 understanding the question.” Jin Chen v. U.S. Dep’t of
9 Justice, 426 F.3d 104, 113 (2d Cir. 2005). Moreover, the
10 record supports the finding: the IJ noted a long pause when
11 Ranabhat was questioned about when he became an active member
12 of the NCP in relation to his attack, and Ranabhat gave
13 evasive answers or expressed his confusion or surprise in
14 response to some questions.
15 The agency also reasonably relied on inconsistencies.
16 See 8 U.S.C. § 1158(b)(1)(B)(iii). Ranabhat’s testimony
17 about when he became active in the NCP conflicted with
18 supporting documents. Further, Ranabhat was inconsistent
19 about the alleged attack, treatment, and time in hiding in
20 Nepal. Ranabhat testified that he did not know any of the
21 seven people who attacked him. However, he submitted
4 1 identical letters from two friends who allegedly rescued him
2 after the attack, which stated that he was attacked “by around
3 8-10 cadres of Maoist,” and the attack was led by a local
4 Maoist leader. Ranabhat’s affidavit reflected that he “was
5 . . . hospitalized for 12 days in the hospital,” and that he
6 was “discharged from the hospital,” but a letter confirming
7 medical treatment does not mention a 12-day hospitalization,
8 and Ranabhat testified that he stayed at someone’s home near
9 the hospital and went back and forth for treatment.
10 Regarding the four years he spent in hiding in Kathmandu, he
11 variously stated that he only went outside once or twice in
12 four years, that he sometimes met up with friends, and that
13 he attended a couple of NCP events.
14 The agency also relied on Ranabhat’s failure to testify
15 about a threatening letter from Maoists referenced in a
16 corroborating statement from the NCP. Even assuming the IJ
17 erred in finding an inconsistency based on Ranabhat’s
18 omission of this fact, see Hong Fei Gao, 891 F.3d at 78
19 (“omissions are less probative of credibility than
20 inconsistencies created by direct contradictions in evidence
21 and testimony” (quotation marks omitted)), the other
5 1 inconsistencies render remand futile, see Lianping Li v.
2 Lynch, 839 F.3d 144, 149 (2d Cir. 2016) (holding that remand
3 is futile despite error where “(1) substantial evidence . .
4 . , considered in the aggregate, supports the IJ’s finding
5 that petitioner lacked credibility, and (2) disregarding
6 those aspects of the IJ’s reasoning that are tainted by error,
7 we can state with confidence that the IJ would adhere to his
8 decision were the petition remanded” (quotation marks
9 omitted)).
10 In sum, the multiple inconsistencies provide substantial
11 evidence for the adverse credibility determination. See
12 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin, 534 F.3d at
13 167; Likai Gao v. Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020)
14 (“[E]ven a single inconsistency might preclude an alien from
15 showing that an IJ was compelled to find him credible.
16 Multiple inconsistencies would so preclude even more
17 forcefully.”). The adverse credibility determination is
18 dispositive of asylum, withholding of removal, and CAT relief
19 because all three claims are based on the same factual
20 predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d
21 Cir. 2006).
6 1 For the foregoing reasons, the petition for review is
2 DENIED. Petitioner’s motion to supplement the record is
3 DENIED because we “shall decide the petition only on the
4 administrative record on which the order of removal is based.”
5 8 U.S.C. § 1252(b)(4)(A). All other pending motions and
6 applications are DENIED and stays VACATED.
7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, 9 Clerk of Court