Opinion
20-722 NAC
12-21-2021
KUMAR PATEL-NIRAV, Petitioner, v. MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent.
FOR PETITIONER: Usman B. Ahmad, Esq., Queens, NY. FOR RESPONDENT: Jeffrey Bossert Clark, Acting Assistant Attorney General; Song Park, Acting Assistant Director; Aaron D. Nelson, Trial Attorney, Office of Immigration Litigation, 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UNPUBLISHED OPINION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 TO 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 21st day of December, two thousand twenty-one.
FOR PETITIONER:
Usman B. Ahmad, Esq., Queens, NY.
FOR RESPONDENT:
Jeffrey Bossert Clark, Acting Assistant Attorney General; Song Park, Acting Assistant Director; Aaron D. Nelson, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
PRESENT: JOHN M. WALKER, JR., RICHARD C. WESLEY, MICHAEL H. PARK, 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 Kumar Patel-Nirav, a native and citizen of India, seeks review of a January 28, 2020 decision of the BIA affirming a May 16, 2018 decision of an Immigration Judge ("IJ") denying Patel-Nirav's application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). In re Kumar Patel-Nirav, No. A206 025 813 (B.I.A. Jan. 28, 2020), aff'g No. A206 025 813 (Immig. Ct. N.Y.C. May 16, 2018). We assume the parties' familiarity with the underlying facts and procedural history.
We have considered both the IJ's and the BIA's opinions. See Wangchuck v. Dep't of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review the agency's adverse credibility determination for substantial evidence. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018).
"Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, . . . the consistency between the applicant's or witness's written and oral statements . . ., [and] the internal consistency of each such statement . . . without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim, or any other relevant factor." 8 U.S.C. § 1158(b)(1)(B)(iii). "We 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." Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d at 76. Substantial evidence supports the agency's determination that Patel-Nirav was not credible as to his claim that members of the Congress Party attacked him twice in India on account of his membership in the Bharatiya Janata Party.
The IJ reasonably found that Patel-Nirav made inconsistent statements regarding whether he called police after his first attack and whether he received medical treatment after his second attack. See 8 U.S.C. § 1158(b)(1)(B)(iii). The agency also reasonably relied on Patel-Nirav's omission from his asylum application of his injuries from the second attack, particularly given that he had included the injuries that allegedly resulted from the first attack. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Hong Fei Gao, 891 F.3d at 78-79 (providing that the agency can rely on the omission of a fact "that a credible petitioner would reasonably have been expected to disclose under the relevant circumstances"). Patel-Nirav failed to provide a compelling explanation for these inconsistencies. See Majidi v. 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." (internal quotations omitted)).
Having questioned Patel-Nirav's credibility, the agency reasonably relied further on his failure to rehabilitate his testimony with reliable corroborating evidence despite having almost two years to do so. 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."). Contrary to Patel-Nirav's contention, the agency was not required to determine whether such evidence was reasonably available before relying on its absence to make a credibility determination. See Diallo v. Gonzales, 445 F.3d 624, 633-34 (2d Cir. 2006).
Given the inconsistency and corroboration findings, the agency's adverse credibility determination is supported by substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Likai Gao v. Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020) ("[E]ven a single inconsistency might preclude an alien from showing that an IJ was compelled to find him credible. Multiple inconsistencies would so preclude even more forcefully."). That determination was dispositive of asylum, withholding of removal, and CAT relief because all three claims were based on the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). Accordingly, we do not reach the agency's alternative dispositive determination that his asylum application was untimely. 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.").
The IJ did not identify how Patel-Nirav's testimony was unresponsive; even assuming error in that determination, we conclude that remand to correct that error would be futile given the IJ's findings on Patel-Nirav's inconsistencies and omission of corroborating evidence. See Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 339 (2d Cir. 2006).
For the foregoing reasons, the petition for review is DENIED. All pending motions and applications are DENIED and stays VACATED.