Opinion
20-3669-ag
03-08-2023
RAMESH BUDHA MAGAR, Petitioner, v. MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent.
FOR PETITIONER: Khagendra Gharti-Chhetry, Esq., Chhetry & Associates, P.C., New York, NY FOR RESPONDENT: Abigail E. Leach, Trial Attorney, Anthony C. Payne, Assistant Director, Office of Immigration Litigation, for Brian Boynton, Acting Assistant Attorney General, Civil Division, United States Department of Justice, Washington, DC
UNPUBLISHED OPINION
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 8th day of March, two thousand twenty-three.
FOR PETITIONER: Khagendra Gharti-Chhetry, Esq., Chhetry & Associates, P.C., New York, NY
FOR RESPONDENT: Abigail E. Leach, Trial Attorney, Anthony C. Payne, Assistant Director, Office of Immigration Litigation, for Brian Boynton, Acting Assistant Attorney General, Civil Division, United States Department of Justice, Washington, DC
PRESENT: RAYMOND J. LOHIER, JR., STEVEN J. MENASHI, BETH ROBINSON, Circuit Judges.
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 Ramesh Budha Magar, a native and citizen of Nepal, seeks review of an October 13, 2020 decision of the BIA affirming the denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"), and dismissing his administrative appeal. In re Ramesh Budha Magar, No. A 205 043 361 (B.I.A. Oct. 13, 2020), aff'g No. A 205 043 361 (Immig. Ct. N.Y. City Aug. 16, 2018). We assume the parties' familiarity with the underlying facts and the record of prior proceedings, to which we refer only as necessary to explain our decision to deny the petition.
"When the BIA agrees with an IJ's adverse credibility determination and adopts particular parts of the IJ's reasoning, we review the decisions of both the BIA and the IJ." Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (quotation marks omitted). We review the IJ's credibility determination as modified by the BIA for substantial evidence and "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." Id. We treat "the administrative findings of fact [as] conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).
Under the REAL ID Act, an IJ bases a credibility determination on the "totality of the circumstances, and all relevant factors." 8 U.S.C. § 1158(b)(1)(B)(iii). Those factors may include:
the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant's or witness's account, the consistency between the applicant's or witness'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 (including the reports of the Department of State on country conditions), 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.
We conclude that substantial evidence supports the IJ's determination that Magar was not credible as to his persecution by the Maoists - members of the Nepal Communist Party - on account of his political activities for the Nepali Congress Party ("NCP").
First, the IJ reasonably found it implausible that Magar did not know whether the NCP was in power in 2010 when he was attacked. Given the political activities Magar claimed to have participated in as an NCP member and the fact that Magar's asylum application discussed the Maoists' role in the government at that time, the IJ reasonably concluded that Magar's lack of such knowledge undermined his credibility, notwithstanding Magar's explanation that he had limited education. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
Second, the IJ also reasonably relied on inconsistencies between Magar's and his brother's testimony regarding telephone service in their village. Magar argues that this inconsistency is trivial, but "an IJ may rely on any inconsistency . . . as long as the 'totality of the circumstances' establishes that an asylum applicant is not credible." Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)).
Third, the IJ reasonably found that Magar's corroborating evidence did not suffice to meet Magar's burden of proof. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) ("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."). The IJ reasonably determined that there was no firsthand evidence to corroborate the alleged past persecution because letters from an NCP leader and the Village Development Committee lacked detail about the alleged assaults, and it was not clear that the authors had personal knowledge of the events. And Magar undermined the reliability of this evidence because he did not recognize the name of the author of one of the letters and incorrectly identified the individual as a Maoist.
Fourth, Magar has not demonstrated that the IJ erred by finding that country conditions evidence, specifically a report from the Immigrant and Refugee Board of Canada, called into question the authenticity of the threatening letters Magar claimed he received from Maoists because the report states that the Maoists have not issued threat letters since 2006. The asylum statute permits an IJ to consider the consistency of an applicant's or witness's statements "with other evidence of record." 8 U.S.C. § 1158(b)(1)(B)(iii). Although an IJ "should be careful not to place excessive reliance on published [background] reports" when making a credibility determination and should "consider . . . any contrary or countervailing evidence . . . as well as the particular circumstances of the applicant's case," Magar has not pointed to any "personal knowledge, . . . detail in [his] account, [or] equivocation in the [report]" that might have required the IJ to credit Magar's testimony notwithstanding the report. Cao He Lin v. U.S. Dep't of Just., 428 F.3d 391, 403 (2d Cir. 2005) (quotation marks omitted); see also Xiao Ji Chen v. U.S. Dep't of Just., 434 F.3d 144, 159-60 (2d Cir. 2006) (upholding an adverse credibility finding that relied in part on a finding that a "petitioner's testimony [was] inconsistent with . . . the State Department profile for her region").
Finally, the IJ's demeanor finding provides additional support for the adverse credibility determination. See Majidi, 430 F.3d at 81 n.1 (noting the IJ's "unique advantage in making credibility findings of having heard directly from the applicant" and assessed "testimony together with witness demeanor" (quotation marks omitted)). Viewed cumulatively, the implausibility finding, the inconsistencies, the lack of reliable corroboration, and the demeanor finding provide substantial evidence to support the adverse credibility determination. See Xiu Xia Lin, 534 F.3d at 167. The adverse credibility determination is dispositive of asylum, withholding of removal, and CAT relief because all three claims are based on the same factual predicate that relies on Magar's testimony for evidentiary support. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
We do not rely on the remaining implausibility findings. Given the findings discussed above, we conclude that remand is not warranted. See Hong Fei Gao, 891 F.3d at 76 (noting that we defer to a credibility determination unless "it is plain that no reasonable fact-finder could make such an adverse credibility ruling"); see also Li Hua Lin v. U.S. Dep't of Just., 453 F.3d 99, 107 (2d Cir. 2006) (holding that "remand to the BIA is futile . . . whenever the reviewing panel is confident that the agency would reach the same result upon a reconsideration cleansed of errors").
We have considered Magar's remaining arguments and conclude that they are without merit. For the foregoing reasons, the petition for review is DENIED. All pending motions and applications are DENIED and stays VACATED.