21-6481 Vishal v. Garland BIA Cassin, IJ A208 554 351
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 for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 6th day of March, two thousand 4 twenty-four. 5 6 PRESENT: 7 REENA RAGGI, 8 JOSEPH F. BIANCO, 9 BETH ROBINSON, 10 Circuit Judges. 11 _____________________________________ 12 13 VISHAL VISHAL, 14 Petitioner, 15 16 v. 21-6481 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Mercedes Altman, Westbury, NY. 24 FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant 1 Attorney General; Keith I. McManus, 2 Assistant Director; Spencer Shucard, Trial 3 Attorney, Sarah M. Pribe, Legal Intern, Office 4 of Immigration Litigation, United States 5 Department of Justice, Washington, DC.
6 UPON DUE CONSIDERATION of this petition for review of a Board of
7 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
8 DECREED that the petition for review is DENIED in part and DISMISSED in part.
9 Petitioner Vishal Vishal, a native and citizen of India, seeks review of a
10 decision of the BIA affirming a decision of an Immigration Judge (“IJ”) denying
11 his application for asylum, withholding of removal, and relief under the
12 Convention Against Torture (“CAT”). In re Vishal Vishal, No. A 208 554 351 (B.I.A.
13 Aug. 4, 2021), aff’g No. A 208 554 351 (Immig. Ct. N.Y. City Oct. 2, 2018). We
14 assume the parties’ familiarity with the underlying facts and procedural history.
15 We have reviewed the IJ’s decision as supplemented by the BIA. See Yan
16 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the agency’s factual
17 findings for substantial evidence, and questions of law and the application of fact
18 to law de novo. Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). “[T]he
19 administrative findings of fact are conclusive unless any reasonable adjudicator
20 would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
21 An asylum applicant bears the burden of proof to demonstrate past
2 1 persecution or a well-founded fear of future persecution. Id. § 1158(b)(1)(B)(i);
2 8 C.F.R. § 1208.13(b). This includes a showing that the harm was sufficiently
3 severe, and that it was either at the hands of government actors or private actors
4 that the government was unable and unwilling to control. See Pan v. Holder, 777
5 F.3d 540, 543 (2d Cir. 2015); Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006).
6 “The testimony of the applicant may be sufficient to sustain the applicant’s
7 burden without corroboration, but only if the applicant satisfies the trier of fact
8 that the applicant’s testimony is credible, is persuasive, and refers to specific facts
9 sufficient to demonstrate that the applicant is a refugee.” 8 U.S.C.
10 § 1158(b)(1)(B)(ii). To determine whether the applicant has met the applicant’s
11 burden, the trier of fact “may weigh the credible testimony along with other
12 evidence of record.” Id. In some cases, an applicant may be “generally
13 credible,” but the applicant’s testimony may not persuade the factfinder of the
14 accuracy of the applicant’s “claim of crucial facts” if the applicant fails to provide
15 “corroboration that should be readily available.” Wei Sun v. Sessions, 883 F.3d 23,
16 28 (2d Cir. 2018).
17 “No court shall reverse a determination made by a trier of fact with respect
18 to the availability of corroborating evidence . . . unless the court finds . . . that a
19 reasonable trier of fact is compelled to conclude that such corroborating evidence
3 1 is unavailable.” 8 U.S.C. § 1252(b)(4).
2 The agency did not err in concluding that Vishal did not provide “sufficient
3 and reliable evidence to establish the factual basis of his claim.” Cert. Admin.
4 Record 61. Vishal alleged that he was twice assaulted by members of the
5 Bharatiya Janata Party (“BJP”) because of his membership in the Indian National
6 Lok Dal Party (“INLD”). Vishal’s testimony conflicted with his affidavit and
7 documentary evidence. For example, a doctor’s letter stated that, after the first
8 attack, Vishal had internal injuries, injuries to his hands, feet, arms, shoulders, and
9 legs, and was bleeding from his knees, but Vishal testified that he sustained
10 injuries only to his hands, feet, and wrists. The doctor’s letter also stated that
11 Vishal returned for an examination on October 25, 2014, but Vishal testified that
12 he did not go back to the doctor after being discharged on October 10, 2014.
13 Vishal’s own affidavit stated that his mother answered the door to his attackers in
14 connection with the second attack in July 2015; his mother stated that she and
15 Vishal went to the gate together; and he testified, contrary to both statements, that
16 he answered the door himself. And Vishal submitted a party membership card
17 but could not explain where the membership card came from.
18 When confronted with these issues, Vishal said he did not know why there
19 were differences, blamed the doctor, and, with respect to the July 2015 attack,
4 1 denied that his written statement and testimony differed. Vishal now argues that
2 these inconsistencies can be explained by nerves, poor recollection, or the doctor
3 misremembering the events, but such explanations do not compel a conclusion
4 that his testimony was sufficiently reliable to meet his burden of proof without
5 corroboration. See Ming Zhang v. Holder, 585 F.3d 715, 722, 725–26 (2d Cir. 2009)
6 (holding that an applicant’s subsequent claim that she was nervous, afraid, and
7 distracted during an interview does not automatically undermine the reliability of
8 her responses); Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
9 do more than offer a plausible explanation for his inconsistent statements to secure
10 relief; he must demonstrate that a reasonable fact-finder would be compelled to
Free access — add to your briefcase to read the full text and ask questions with AI
21-6481 Vishal v. Garland BIA Cassin, IJ A208 554 351
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 for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 6th day of March, two thousand 4 twenty-four. 5 6 PRESENT: 7 REENA RAGGI, 8 JOSEPH F. BIANCO, 9 BETH ROBINSON, 10 Circuit Judges. 11 _____________________________________ 12 13 VISHAL VISHAL, 14 Petitioner, 15 16 v. 21-6481 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Mercedes Altman, Westbury, NY. 24 FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant 1 Attorney General; Keith I. McManus, 2 Assistant Director; Spencer Shucard, Trial 3 Attorney, Sarah M. Pribe, Legal Intern, Office 4 of Immigration Litigation, United States 5 Department of Justice, Washington, DC.
6 UPON DUE CONSIDERATION of this petition for review of a Board of
7 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
8 DECREED that the petition for review is DENIED in part and DISMISSED in part.
9 Petitioner Vishal Vishal, a native and citizen of India, seeks review of a
10 decision of the BIA affirming a decision of an Immigration Judge (“IJ”) denying
11 his application for asylum, withholding of removal, and relief under the
12 Convention Against Torture (“CAT”). In re Vishal Vishal, No. A 208 554 351 (B.I.A.
13 Aug. 4, 2021), aff’g No. A 208 554 351 (Immig. Ct. N.Y. City Oct. 2, 2018). We
14 assume the parties’ familiarity with the underlying facts and procedural history.
15 We have reviewed the IJ’s decision as supplemented by the BIA. See Yan
16 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the agency’s factual
17 findings for substantial evidence, and questions of law and the application of fact
18 to law de novo. Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). “[T]he
19 administrative findings of fact are conclusive unless any reasonable adjudicator
20 would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
21 An asylum applicant bears the burden of proof to demonstrate past
2 1 persecution or a well-founded fear of future persecution. Id. § 1158(b)(1)(B)(i);
2 8 C.F.R. § 1208.13(b). This includes a showing that the harm was sufficiently
3 severe, and that it was either at the hands of government actors or private actors
4 that the government was unable and unwilling to control. See Pan v. Holder, 777
5 F.3d 540, 543 (2d Cir. 2015); Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006).
6 “The testimony of the applicant may be sufficient to sustain the applicant’s
7 burden without corroboration, but only if the applicant satisfies the trier of fact
8 that the applicant’s testimony is credible, is persuasive, and refers to specific facts
9 sufficient to demonstrate that the applicant is a refugee.” 8 U.S.C.
10 § 1158(b)(1)(B)(ii). To determine whether the applicant has met the applicant’s
11 burden, the trier of fact “may weigh the credible testimony along with other
12 evidence of record.” Id. In some cases, an applicant may be “generally
13 credible,” but the applicant’s testimony may not persuade the factfinder of the
14 accuracy of the applicant’s “claim of crucial facts” if the applicant fails to provide
15 “corroboration that should be readily available.” Wei Sun v. Sessions, 883 F.3d 23,
16 28 (2d Cir. 2018).
17 “No court shall reverse a determination made by a trier of fact with respect
18 to the availability of corroborating evidence . . . unless the court finds . . . that a
19 reasonable trier of fact is compelled to conclude that such corroborating evidence
3 1 is unavailable.” 8 U.S.C. § 1252(b)(4).
2 The agency did not err in concluding that Vishal did not provide “sufficient
3 and reliable evidence to establish the factual basis of his claim.” Cert. Admin.
4 Record 61. Vishal alleged that he was twice assaulted by members of the
5 Bharatiya Janata Party (“BJP”) because of his membership in the Indian National
6 Lok Dal Party (“INLD”). Vishal’s testimony conflicted with his affidavit and
7 documentary evidence. For example, a doctor’s letter stated that, after the first
8 attack, Vishal had internal injuries, injuries to his hands, feet, arms, shoulders, and
9 legs, and was bleeding from his knees, but Vishal testified that he sustained
10 injuries only to his hands, feet, and wrists. The doctor’s letter also stated that
11 Vishal returned for an examination on October 25, 2014, but Vishal testified that
12 he did not go back to the doctor after being discharged on October 10, 2014.
13 Vishal’s own affidavit stated that his mother answered the door to his attackers in
14 connection with the second attack in July 2015; his mother stated that she and
15 Vishal went to the gate together; and he testified, contrary to both statements, that
16 he answered the door himself. And Vishal submitted a party membership card
17 but could not explain where the membership card came from.
18 When confronted with these issues, Vishal said he did not know why there
19 were differences, blamed the doctor, and, with respect to the July 2015 attack,
4 1 denied that his written statement and testimony differed. Vishal now argues that
2 these inconsistencies can be explained by nerves, poor recollection, or the doctor
3 misremembering the events, but such explanations do not compel a conclusion
4 that his testimony was sufficiently reliable to meet his burden of proof without
5 corroboration. See Ming Zhang v. Holder, 585 F.3d 715, 722, 725–26 (2d Cir. 2009)
6 (holding that an applicant’s subsequent claim that she was nervous, afraid, and
7 distracted during an interview does not automatically undermine the reliability of
8 her responses); Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
9 do more than offer a plausible explanation for his inconsistent statements to secure
10 relief; he must demonstrate that a reasonable fact-finder would be compelled to
11 credit his testimony.” (emphasis in original and internal quotation marks
12 omitted)).
13 Nor did the agency err in concluding that Vishal failed to submit sufficient
14 corroborating evidence where it is reasonable to expect such corroboration. As
15 the IJ determined, Vishal’s documentary evidence failed to corroborate key aspects
16 of his claim. His father’s affidavit did not confirm Vishal’s contention that, since
17 leaving India, BJP members have harassed his father and asked about Vishal’s
18 whereabouts. A letter from the INLD did not confirm Vishal’s party
19 membership, either of the two attacks, or the extent of the injuries resulting from
5 1 the attacks. And his medical records did not confirm the extent of his treatment.
2 The agency also reasonably afforded diminished weight to the affidavits
3 from India. See Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) (“We generally
4 defer to the agency’s evaluation of the weight to be afforded an applicant’s
5 documentary evidence.”). The IJ reasonably gave minimal weight to letters from
6 Vishal’s parents and the INLD district president because his father and the INLD
7 president omitted material details, his parents were interested parties, and all
8 three declarants were unavailable for cross-examination. See Likai Gao v. Barr, 968
9 F.3d 137, 149 (2d Cir. 2020).
10 In addition, evidence of police corruption was not sufficient to support
11 Vishal’s fear of being killed in police custody if returned to India because he did
12 not meet his burden to establish past harm or fear of future harm based on political
13 activities; thus, his country conditions evidence alone did not demonstrate that he
14 would be targeted. Cf. Mu Xiang Lin v. U.S. Dep’t of Just., 432 F.3d 156, 160 (2d
15 Cir. 2005) (holding that evidence that some prisoners are tortured was not
16 sufficient to “establish[] that someone in [petitioner’s] particular alleged
17 circumstances is more likely than not to be tortured” (emphasis deleted)).
18 In sum, the agency did not err in concluding that Vishal failed to meet his
19 burden of proof given the inconsistencies and the lack of reliable corroboration of
6 1 Vishal’s party membership, the attacks, the extent of Vishal’s injuries, and Vishal’s
2 claims that BJP members have harassed his father and asked about Vishal’s
3 whereabouts since he left India. See 8 U.S.C. §§ 1158(b)(1)(B)(ii), 1252(b)(4)(B);
4 Wei Sun, 883 F.3d at 28. That finding is dispositive of all forms of relief because
5 Vishal had the burden to establish past persecution, a well-founded fear or
6 likelihood of future persecution, or a likelihood of torture. See Lecaj v. Holder, 616
7 F.3d 111, 119–20 (2d Cir. 2010).
8 Finally, “we lack jurisdiction to review a claim that a single BIA member
9 erred in deciding to resolve unilaterally an appeal of an IJ’s order and not to refer
10 the case to a three-member BIA panel.” Kambolli v. Gonzales, 449 F.3d 454, 465 (2d
11 Cir. 2006).
12 For the foregoing reasons, the petition for review is DENIED in part and
13 DISMISSED in part. All pending motions and applications are DENIED and stays
14 VACATED.
15 FOR THE COURT: 16 Catherine O’Hagan Wolfe, 17 Clerk of Court 18