Gurung v. Barr
929 F.3d 56
| 2d Cir. | 2019Background
- Gurung, a Nepali national, applied for asylum, withholding of removal, and CAT protection after arriving in the U.S. in 2012, alleging politically motivated assaults by Maoist Party members in 2000 and 2012.
- 2000: Gurung and his father were beaten after refusing Maoist allegiance; written statement said his father was beaten “almost to death”; at hearing Gurung described the father as “very badly” beaten but not necessarily dying.
- 2012: Gurung alleges abduction, prolonged beating, promise to pay a large sum, then release; he sought medical treatment and attempted to report to police; medical records exist but are dated Feb. 20, 2012.
- IJ found Gurung not credible based solely on three purported inconsistencies: (1) differing descriptions of father’s injuries, (2) statements about police response, and (3) timing of hospital visit (Feb. 11–13 vs. medical record dated Feb. 20).
- BIA affirmed; Second Circuit granted review, held two of the three "inconsistencies" were not inconsistencies and remanded because it could not conclude the remaining discrepancy alone would necessarily sustain an adverse credibility finding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Were the IJ’s adverse-credibility findings supported by record inconsistencies? | Gurung: statements are consistent or plausibly explained; apparent differences are trivial or due to interpreter/omissions. | Gov: IJ correctly identified material inconsistencies undermining credibility. | Court: Two of three alleged inconsistencies (father’s injuries; police interaction) were not inconsistent; remaining date discrepancy insufficiently dispositive—remand required. |
| What counts as an "inconsistency" for adverse-credibility findings? | Gurung: trivial wording differences or omissions should not be treated as inconsistencies. | Gov: variations in phrasing and omissions can undermine credibility. | Court: Inconsistency requires more than minor differences in wording; trivial differences, especially with interpreter use, insufficient. |
| When agency commits legal error but some remaining evidence might support the result, what remedy is appropriate? | Gurung: remand to BIA for reconsideration cleansed of legal error. | Gov: Court can affirm if remaining evidence would clearly support decision. | Court: Must remand unless remand would be futile per Chenery/Li Hua Lin; court may not substitute its judgment for agency. |
| Was remand futile here (i.e., would agency inevitably reach same result)? | Gurung: No; two errors undermine the credibility finding and remaining evidence is not obviously decisive. | Gov: Remaining date discrepancy could suffice to deny relief. | Court: Remand not futile; vacated removal and remanded to BIA. |
Key Cases Cited
- S.E.C. v. Chenery Corp., 318 U.S. 80 (1943) (agency decisions cannot be upheld on grounds not relied upon by the agency; legal errors require remand)
- Li Hua Lin v. U.S. Dep't of Justice, 453 F.3d 99 (2d Cir. 2006) (remand required unless futile; standards when court may affirm despite agency error)
- Hong Fei Gao v. Sessions, 891 F.3d 67 (2d Cir. 2018) (trivial inconsistencies that do not suggest fabrication cannot alone support adverse credibility)
- Majidi v. Gonzales, 430 F.3d 77 (2d Cir. 2005) (burden on applicant to show a reasonable factfinder would be compelled to credit testimony in face of inconsistencies)
- Siewe v. Gonzales, 480 F.3d 160 (2d Cir. 2007) (credibility determinations must be tethered to the evidentiary record)
- Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104 (2d Cir. 2007) (substantial-evidence review standard for IJ factual findings)
- Xue Hong Yang v. U.S. Dep't of Justice, 426 F.3d 520 (2d Cir. 2005) (deference to IJ factual findings under substantial evidence standard)