Timalsina v. Garland

Opinion

20-3168 Timalsina v. Garland BIA

Lurye, IJ

A208 927 879

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 19th day of December, two thousand twenty- 5 two. 6 7 PRESENT: 8 JON O. NEWMAN, 9 MICHAEL H. PARK, 10 EUNICE C. LEE, 11 Circuit Judges. 12 _____________________________________ 13 14 NAGENDRA PRASAD TIMALSINA, 15 Petitioner, 16 17 v. 20-3168 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________

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1 FOR PETITIONER: Khagendra Gharti-Chhetry, New 2 York, NY. 3 4 FOR RESPONDENT: Brian Boynton, Acting Assistant 5 Attorney General; Justin R. 6 Markel, Paul Fiorino, Senior 7 Litigation Counsel, Office of 8 Immigration Litigation, United 9 States Department of Justice, 10 Washington, DC.

11 UPON DUE CONSIDERATION of this petition for review of a 12 Board of Immigration Appeals (“BIA”) decision, it is hereby 13 ORDERED, ADJUDGED, AND DECREED that the petition for review 14 is DENIED. 15 Petitioner Nagendra Prasad Timalsina, a native and 16 citizen of Nepal, seeks review of an August 26, 2020 decision 17 of the BIA affirming an August 16, 2018 decision of an 18 Immigration Judge (“IJ”) denying his application for asylum, 19 withholding of removal, and relief under the Convention 20 Against Torture (“CAT”). In re Nagendra Prasad Timalsina, 21 No. A208-927-879 (B.I.A. Aug. 26, 2020), aff’g No. A208-927- 22 879 (Immigr. Ct. N.Y.C. Aug. 16, 2018). We assume the 23 parties’ familiarity with the underlying facts and procedural 24 history. 25 The BIA afirmed without an opinion, so we review the IJ’s 26 decision directly. Twum v. INS, 411 F.3d 54, 58 (2d Cir.

1 2005). The applicable standards of review are well 2 established. See 8 U.S.C. § 1252(b)(4)(B) (“[T]he 3 administrative findings of fact are conclusive unless any 4 reasonable adjudicator would be compelled to conclude to the 5 contrary.”); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d 6 Cir. 2018) (reviewing adverse credibility determination under 7 “substantial evidence” standard). 8 “Considering the totality of the circumstances, and all 9 relevant factors, a trier of fact may base a credibility 10 determination on” the “consistency between the 11 applicant’s . . . written and oral statements (whenever made 12 and whether or not under oath, and considering the 13 circumstances under which the statements were made), the 14 internal consistency of each such statement, [and] the 15 consistency of such statements with other evidence of record” 16 without “regard to whether an inconsistency, inaccuracy, or 17 falsehood goes to the heart of the applicant’s claim, or any 18 other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We 19 defer . . . to an IJ’s credibility determination 20 unless . . . it is plain that no reasonable fact-finder could 21 make such an adverse credibility ruling.” Xiu Xia Lin v.

1 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei 2 Gao, 891 F.3d at 76. 3 Timalsina alleged that members of Nepal’s Communist Party 4 (“Maoists”) attacked and threatened him because of his 5 membership and involvement in the Nepali Congress Party 6 (“NCP”). Substantial evidence supports the agency’s adverse 7 credibility determination. The agency reasonably relied on 8 inconsistencies among Timalsina’s testimony, interview 9 statements, and documentary evidence. See 8 U.S.C. 10 § 1158(b)(1)(B)(iii). 11 As an initial matter, the agency did not err in 12 concluding that the interview record was reliable. The 13 interview was memorialized in a typed document that appears 14 to list verbatim 127 questions and Timalsina’s responses, and 15 it was conducted through an interpreter in Timalsina’s native 16 language. Moreover, the interviewer asked follow-up 17 questions to elicit the details of an asylum claim, and 18 Timalsina stated that he understood all the questions he was 19 asked. He had opportunities to clarify his responses, and 20 there was no indication that he was reluctant to provide 21 information given his responsive and detailed answers. See

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1 Ming Zhang v. Holder, 585 F.3d 715, 724 (2d Cir. 2009) (“Where 2 the record of a credible fear interview displays the hallmarks 3 of reliability, it appropriately can be considered in 4 assessing an alien’s credibility.”). 5 The inconsistencies identified by the agency support the 6 adverse credibility determination. Timalsina was 7 inconsistent regarding an alleged attack. He testified that 8 it occurred on the evening of November 10, 2013, that he went 9 to the hospital before going home and was treated that night, 10 and that he went to the police once to report the attack. 11 But the interview record and documentary evidence— 12 specifically, medical records and a letter from his wife— 13 separately indicate that the attack was in 2017 instead of 14 2013; that the medical treatment was in the morning and not 15 at night; that Timalsina went home before going to the 16 hospital, rather than the other way around; and that he went 17 to the police not once, but twice. The record reflects 18 further inconsistency between his testimony and interview 19 statements about whether the police said they would act on 20 his complaint.

1 The IJ was not required to credit Timalsina’s 2 explanations that he did not understand the questions and 3 that he was confused during the interview. See Majidi v. 4 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must 5 do more than offer a plausible explanation for his 6 inconsistent statements to secure relief; he must demonstrate 7 that a reasonable fact-finder would be compelled to credit 8 his testimony.” (cleaned up)). 9 The agency also reasonably concluded that Timalsina 10 failed to rehabilitate his testimony with corroborating 11 evidence. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d 12 Cir. 2007) (“An applicant’s failure to corroborate his or her 13 testimony may bear on credibility, because the absence of 14 corroboration in general makes an applicant unable to 15 rehabilitate testimony that has already been called into 16 question.”). The agency was thus not required to credit 17 supporting letters and medical records. The letters were 18 from interested parties or parties that were unavailable for 19 cross-examination, and, as noted above, the letter from 20 Timalsina’s wife and his medical records were inconsistent 21 with his version of events. See Y.C. v. Holder, 741 F.3d

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1 324, 332 (2d Cir. 2013) (“We generally defer to the agency’s 2 evaluation of the weight to be afforded an applicant’s 3 documentary evidence.”); see Likai Gao v. Barr, 968 F.3d 137, 4 149 (2d Cir. 2020). 5 Given the multiple inconsistencies and lack of reliable 6 corroboration, substantial evidence supports the adverse 7 credibility determination. See Xiu Xia Lin, 534 F.3d at 167; 8 Biao Yang, 496 F.3d at 273. The agency’s adverse credibility 9 determination is dispositive because Timalsina’s claims for 10 asylum, withholding of removal, and CAT relief were all based 11 on the same factual predicate. See Paul v. Gonzales, 444 12 F.3d 148, 156–57 (2d Cir. 2006). 13 For the foregoing reasons, the petition for review is 14 DENIED. All pending motions and applications are DENIED and 15 stays VACATED.

16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, 18 Clerk of Court