Opinion
19-1943
08-27-2021
MIRAN TAMRAKAR, Petitioner, v. MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent.
Appearing for Appellant: Khagendra Gharti-Chhetry, New York, N.Y. Appearing for Appellee: Kathleen Kelly Volkert, Trial Attorney (Joseph H. Hunt, Assistant Attorney General, Civil Division, Jeffery R. Leist, Senior Litigation Counsel, Nicholas J. Fordice, Law Clerk, Office of Immigration Litigation, on the brief), for Merrick B. Garland, United States Attorney General, United States Department of Justice, Washington, D.C.
UNPUBLISHED OPINION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 27th day of August two thousand twenty-one.
Appearing for Appellant:
Khagendra Gharti-Chhetry, New York, N.Y.
Appearing for Appellee:
Kathleen Kelly Volkert, Trial Attorney (Joseph H. Hunt, Assistant Attorney General, Civil Division, Jeffery R. Leist, Senior Litigation Counsel, Nicholas J. Fordice, Law Clerk, Office of Immigration Litigation, on the brief), for Merrick B. Garland, United States Attorney General, United States Department of Justice, Washington, D.C.
Present: JON O. NEWMAN, ROSEMARY S. POOLER, RAYMOND J. LOHIER, JR., Circuit Judges.
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the petition for review be and it hereby is GRANTED, the Board of Immigration Appeal's decision is VACATED, and the case is REMANDED for further proceedings.
Miran Tamrakar, a native and citizen of Nepal, seeks review of a June 19, 2019 decision of the Board of Immigration Appeals ("BIA") affirming a January 16, 2018 decision of an Immigration Judge ("IJ") denying Tamrakar asylum, withholding of removal, and protection under the Convention Against Torture ("CAT") after finding Tamrakar's testimony not credible. We assume the parties' familiarity with the underlying facts, procedural history, and specification of issues for review.
Tamrakar states he suffered persecution as a member of the Nepali Congress Party ("NCP"), which he officially joined in 2009. He testified about two incidents involving members of the Communist Party of Nepal ("Maoists"). The Maoists are the NCP's rival political party. During the first incident on October 24, 2013, twenty Maoists approached him as he campaigned door-to-door. The Maoists told him to leave the NCP and when he refused, they threatened to beat and kill him, and tried to grab him from behind. He ran away to a friend's house where he stayed for about a week. However, during his credible fear interview, Tamrakar stated that the Maoists left after threatening to beat and kill him. Tamrakar's friend, with whom he stayed after he fled, submitted a letter asserting that he was with Tamrakar during the incident, but Tamrakar testified that he was alone. During the second incident on October 31, 2013, a group of about twenty-five Maoists beat Tamrakar, stating that he had ignored their offer. He escaped to a friend's house and later moved to a hotel where he remained for roughly ten months. Tamrakar suffered pain in his "backbones" from the attack, A.R. at 81, but did not report the beating to the police because the Maoists threatened to kill his family if he did. In his asylum application, Tamrakar stated he was working as a driver in Kathmandu during the time he had testified he had been in hiding at the hotel. When the IJ questioned Tamrakar about this discrepancy, Tamrakar explained that there was a mistake in his application and that he stopped working as a driver in Kathmandu after the first incident in 2013.
The IJ made an adverse credibility finding after noting three alleged inconsistencies between Tamrakar's testimony, credible fear interview, and the documentary evidence: (1) Tamrakar testified that he was campaigning alone during the first incident, but his friend's letter stated the friend was present; (2) Tamrakar testified that the Maoists tried to grab him and he ran away after, but at his credible fear interview he stated that the Maoists left after threatening him; and (3) Tamrakar testified that he was in hiding from October 2013 through August or September 2014, but his asylum application stated he worked as a driver during that time. The IJ concluded that Tamrakar's explanations did not rehabilitate his credibility. The BIA found no clear error in the IJ's adverse credibility determination. On appeal, Tamrakar argues that the agency's adverse credibility determination was not supported by substantial evidence. We agree.
We have reviewed both the IJ and BIA decisions "for the sake of completeness." Wangchuck v. Dep't of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). Credibility determinations may be based on "the consistency between the applicant's or witness's written and oral statements . . ., the internal consistency of each such statement, [and] the consistency of such statements with other evidence of record . . . 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). An "IJ's reasons for finding an applicant not credible [must] be both (1) supported by substantial evidence in the record and (2) logically related to the applicant's credibility." Singh v. Garland, No. 17-2368, ___ F.4th ___, 2021 WL 3176764, at *3 (2d Cir. July 28, 2021). A "trivial and inconsequential" inconsistency that "bears no legitimate nexus to credibility . . . cannot, on its own, constitute the substantial evidence needed to support an adverse credibility finding." Id. at *4. "[W]hen an inconsistency is not self-evident, an IJ may not rely on it to support a credibility determination without first bringing the perceived discrepancy to the alien's attention, thereby giving the alien an opportunity to address and perhaps reconcile the seeming inconsistency, to the IJ's satisfaction, at the least." Ming Shi Xue v. Bd. of Immigr. Appeals, 439 F.3d 111, 114-15 (2d Cir. 2006) (footnote omitted). This Court will "remand for the agency to reconsider the question" if it "cannot confidently predict whether the agency would adhere to the determination absent the errors." Singh, 2021 WL 3176764, at *4.
We conclude that the BIA and IJ erred by relying on an alleged inconsistency between Tamrakar's testimony before the IJ that the Maoists threatened him and tried to grab him before he escaped and Tamrakar's statement during his credible fear interview that the Maoists left after threatening him to support its adverse credibility determination without first raising that discrepancy to Tamrakar. That inconsistency was not "self-evident," Ming Shi Xue, 439 F.3d at 114, because, during the same credible fear interview, Tamrakar stated that the Maoists "tried to grab [him] but [he] ran away from them." A.R. at 369. This statement was consistent with his testimony. Because the IJ and BIA "relied on the combined force of [three] inconsistencies," Singh, 2021 WL 3176764, at *7, and did not provide Tamrakar the opportunity to explain one of them, we "cannot confidently predict whether the agency would adhere to [its] determination absent [its] error[]." Id. at *4. Further lessening our confidence, one of the other inconsistencies that the BIA and IJ relied on (whether Tamrakar's friend accompanied him during the first incident or not) is closely analogous to one that our Court determined gave "no substantial support" to an adverse credibility finding on its own. Id. at *8 (noting that an inconsistency regarding whether a third party accompanied the petitioner to the police station after a key attack could be explained by differing recollections or another innocent explanation). Because we cannot confidently predict what the agency would do absent error, we vacate its decision.
Given our decision to vacate on these grounds, we do not consider the merits of the remainder of Tamrakar's arguments. Accordingly, Tamrakar's petition for review is GRANTED, the BIA's decision is VACATED, and the case is REMANDED for further proceedings consistent with this order.