989 F.3d 239
3rd Cir.2021Background
- Sunuwar, a Nepalese national admitted as an LPR in 2017, attacked his wife on July 2–3, 2018; an affidavit of probable cause described choking, blunt-force injuries, a knife to the throat, and other severe injuries.
- He pleaded guilty to first-degree strangulation (18 Pa. Cons. Stat. § 2718(a)) in May 2019 and to contempt for violating a Pennsylvania protection-from-abuse no-contact order; he was sentenced to 11.5–23 months.
- DHS placed Sunuwar in removal proceedings, charging deportability under 8 U.S.C. § 1227(a)(2)(E)(ii) (violation of a protection order), among other grounds; he sought asylum, withholding of removal, and CAT relief.
- At hearing Sunuwar testified he had been kidnapped by Maoists as a youth and later threatened in Nepal; he had not disclosed the kidnapping in his written asylum application and his testimony conflicted with his wife’s and the police affidavit.
- The IJ found Sunuwar removable, held his strangulation conviction a "particularly serious crime" (disqualifying him from asylum/withholding under the INA), and made an adverse credibility finding that led to denial of CAT deferral; the BIA affirmed.
- The Third Circuit denied review, upholding deportability, the particularly-serious-crime determination, and the adverse credibility ruling as supported by substantial evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Deportability under 8 U.S.C. § 1227(a)(2)(E)(ii) for violating a protection order | Sunuwar: his violation consisted only of non-threatening letters, so he should not be deportable | Government: statute requires only that the violated portion involve protection against threats/harassment/bodily injury; no-contact provisions qualify | Court: affirmed — no-contact provisions inherently involve protection against threats/harassment/bodily injury and conviction for violating them supports deportability |
| Whether strangulation conviction is a "particularly serious crime" (disqualifies asylum/withholding) | Sunuwar: statute can criminalize minor touching; sentence was short; facts show a mutual scuffle, not egregious conduct | Government: elements of strangulation are violent; sentencing is one factor; agency may consider conviction record and sworn affidavit of probable cause showing serious injuries | Court: affirmed — elements and record (affidavit, guilty plea, sentence) support agency's discretionary finding that the offense was particularly serious |
| Adverse credibility finding relying on inconsistencies and omissions | Sunuwar: discrepancies can be explained (different events); omission due to prior counsel; IJ erred by crediting police affidavit over testimony | Government: IJ properly relied on (1) inconsistent accounts of kidnappings, (2) omission of kidnapping from signed asylum form, (3) stark conflict between testimony and affidavit of probable cause; REAL ID Act permits such credibility bases | Court: affirmed — substantial evidence supports adverse credibility finding; petition cannot meet CAT burden without credible testimony |
Key Cases Cited
- Nasrallah v. Barr, 140 S. Ct. 1683 (2020) (explains substantial-evidence standard for review of agency factfinding)
- Dia v. Ashcroft, 353 F.3d 228 (3d Cir. 2003) (adverse credibility determinations are factual findings reviewed for substantial evidence)
- Zheng v. Gonzales, 417 F.3d 379 (3d Cir. 2005) (discusses REAL ID Act effects on credibility review)
- Nkomo v. Att’y Gen., 930 F.3d 129 (3d Cir. 2019) (agency has broad discretion in particularly-serious-crime determinations)
- Luziga v. Att’y Gen., 937 F.3d 244 (3d Cir. 2019) (framework for evaluating whether an offense is a particularly serious crime)
- A.A. v. Att’y Gen., 973 F.3d 171 (3d Cir. 2020) (discusses standards for withholding of removal)
- Majidi v. Gonzales, 430 F.3d 77 (2d Cir. 2005) (explains burden to overturn adverse credibility findings)