Roka v. Bondi

• Court: Court of Appeals for the Second Circuit
• Decided: February 13, 2025
• Docket: 23-6056
• Status: Unpublished

Opinion

23-6056 Roka v. Bondi BIA Cassin, IJ A209 154 561

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 13th day of February, two thousand twenty-five.

PRESENT: REENA RAGGI, EUNICE C. LEE, MARIA ARAÚJO KAHN, Circuit Judges. _____________________________________

HANKA ROKA, Petitioner,

v. 23-6056 NAC PAMELA BONDI, UNITED STATES ATTORNEY GENERAL, 1 Respondent. _____________________________________

1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Pamela Bondi is

automatically substituted for former Attorney General Merrick B. Garland as Respondent. FOR PETITIONER: Khagendra Gharti-Chhetry, Esq., New York, NY.

FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant Attorney General; Cindy S. Ferrier, Assistant Director; Micah Engler, 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 Hanka Roka, a native and citizen of Nepal, seeks review of a BIA

decision affirming an Immigration Judge’s (“IJ”) denial of his application for

asylum, withholding of removal, and relief under the Convention Against Torture

(“CAT”). In re Roka, No. A 209 154 561 (B.I.A. Dec. 29, 2022), aff’g No. A 209 154

561 (Immigr. Ct. N.Y.C. May 23, 2019). We assume the parties’ familiarity with

the underlying facts and procedural history.

We have reviewed the IJ’s decision as supplemented by the BIA. See Yan

Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). “We review the agency’s factual

findings, including adverse credibility findings, under the substantial evidence

standard . . . .” 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 2 would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

The IJ’s denial of relief turned on a finding that Roka’s testimony in support

of his application was not credible and lacked corroboration.

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 . . . written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), 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).

When

a petition for review challenges an adverse credibility finding, the alien bears a particularly heavy burden because we review such a factual determination “under the substantial evidence standard,” which—absent some legal error—requires us to “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.”

Gao v. Barr, 968 F.3d 137, 144 (2d Cir. 2020) (quoting Hong Fei Gao, 891 F.3d at 76)

(alterations in original). That is not the case here.

3 Substantial evidence supports the determination that Roka was not credible

in claiming that Maoists threatened and beat him for supporting the Nepali

Congress Party (“NCP”). Specifically, Roka provided inconsistent descriptions

of the alleged beating. The record of his credible fear interview reports that Roka

said that Maoists took him two or three hours away from his house and there beat

him unconscious. Roka reported reviving later that night and returning home the

next morning. By contrast, in a subsequent written statement and during his

hearing, he stated that the beating took place right outside his home, and in the

presence of his family, who were with him when he regained consciousness a few

hours later. 2 When asked to explain the discrepancy, Roka denied stating at his

credible fear interview that his attackers took him away from his home, and his

attorney argued that there must have been an interpretation error at the

interview. 3

The agency was not required to accept this explanation. See Majidi v.

2 As the Government correctly points out, Roka was also inconsistent in identifying the number of assailants, but the agency did not rely on that inconsistency.

3 Roka has abandoned a claim (made at his hearing) that he may have misunderstood the interview interpreter. 4 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.” (quotation marks omitted)). While “adverse credibility

determinations based on ‘discrepancies’ with a credible fear interview should be

examined with care to ensure that they are not arbitrary,” when “the record of a

credible fear interview displays the hallmarks of reliability, it appropriately can be

considered in assessing an alien’s credibility.” Ming Zhang v. Holder, 585 F.3d 715,

724–25 (2d Cir. 2009).

Such hallmarks are present here because (1) the interview “was

memorialized in a typewritten document setting forth the questions put to the

petitioner as well as [his] responses” (although not a verbatim transcript); (2) it

was conducted through an interpreter; (3) Roka said (both during his interview

and initially at his hearing) that he understood the interpreter, and his responsive

answers to the interview questions reflected his understanding; (4) the interviewer

read a paragraph explaining the purpose of the interview, the importance of

answering questions fully and truthfully, and Roka’s ability to ask for

explanations; and (5) the questions were designed to elicit the basis for an asylum

5 claim. Id.

To the extent Roka argues that grammatical errors or non-standard English

suggest that the interpreter misinterpreted Roka’s statement testimony about the

distance from his home at which the beating occurred, the agency was not required

to reach that conclusion. See Siewe v. Gonzales, 480 F.3d 160, 167–68 (2d Cir. 2007)

(explaining that Court defers to agency when multiple interpretations of record

are possible). In arguing otherwise, Roka argues that he would have had no way

to know if the interpreter misstated his response about where he was beaten as

that information was not included in the summary of claim read back to him at the

close of the interview. Nevertheless, Roka does not dispute telling the

interviewer that he “woke up later on in the night and then next morning [he] went

to [his] home,” Certified Administrative Record at 176, and it was not “illogical or

implausible,” Siewe, 480 F.3d at 167 (quoting Anderson v. Bessemer City, 470 U.S.

564, 577 (1985)), for the agency to find that was inconsistent with his later claim

that he simply meant he went inside the house the next morning. It would be odd

to specify that he returned home if he was immediately outside his house the entire

time—and that he would regain consciousness outside in his front yard at night,

but not go inside until the morning.

6 Nor was this inconsistency too minor and tangential to support an adverse

credibility determination, given that it concerned basic details of the only alleged

incident of physical violence. “[E]ven a single inconsistency might preclude an

alien from showing that an IJ was compelled to find him credible,” Gao, 968 F.3d

at 145 n.8, and the agency “may, either expressly or impliedly,” discredit an

applicant’s testimony and evidence under “the maxim falsus in uno, falsus in

omnibus [false in one thing, false in everything],” Siewe, 480 F.3d at 170 (quotation

marks omitted).

The absence of reliable corroboration further supports the adverse

credibility determination. “An applicant’s failure to corroborate his or her

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.” Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The IJ did

not err in granting limited weight to statements from Nepal, including statements

from Roka’s wife 4 and friend, because the declarants were unavailable for cross-

examination and some were interested parties. See Gao, 968 F.3d at 149 (holding

4 These statements include claims about subsequent Maoist attacks on Roka’s family by Maoists, as well as the disappearance of Roka’s father. 7 “IJ acted within her discretion in according . . . little weight [to letters] because the

declarants (particularly [petitioner]’s wife) were interested parties and neither was

available for cross-examination”). 5 The IJ also did not err in giving limited weight

to Roka’s medical record. The document was handwritten and difficult to read;

it does not purport to corroborate Roka’s injuries; and its author was not available

for cross-examination. 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.”). And even if Roka’s NCP membership card

and a letter from the NCP establish his involvement with that group, the letter

recounts Roka’s allegations of past persecution without specifying the basis for the

declarant’s knowledge of those events.

In sum, substantial evidence supports the adverse credibility determination,

which is dispositive of all of Roka’s claims for asylum, withholding of removal,

and CAT relief because each form of relief here is based on the same factual

5As the Government points out, Roka’s argument that his wife is not an interested party because they are legally separated was unexhausted before the BIA. See Ud Din v. Garland, 72 F.4th 411, 419–20 & n.2 (2d Cir. 2023) (reaffirming that administrative exhaustion is “mandatory in the sense that a court must enforce the rule if a party properly raises it” (quotation marks omitted)). 8 predicate. 6 See Hong Fei Gao, 891 F.3d at 76.

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

6 We therefore do not reach the BIA’s conclusion that Roka waived his CAT claim, or the Government’s argument that his CAT claim is unexhausted. 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.”). 9