ASHISH SUNUWAR, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent
No. 20-2091
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
February 25, 2021
Before: RESTREPO, BIBAS, and PORTER, Circuit Judges.
PRECEDENTIAL. On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A065-184-944). Immigration Judge: John B. Carle. Submitted Under Third Circuit L.A.R. 34.1(a): January 26, 2021.
Anser Ahmad
Ahmad & Associates
6888 Elm Street, Suite 101
McLean, VA 22101
Counsel for Petitioner Ashish Sunuwar
Lindsay B. Glauner
Imran R. Zaidi
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, DC 20044
Counsel for Respondent Attorney General United States of America
PORTER, Circuit Judge.
Ashish Sunuwar immigrated to the United States from Nepal in 2017. On the night of July 2, 2018, he beat and strangled his wife, Rima Sunuwar.1 Sunuwar was ultimately convicted of strangulation and contempt for violating a protection-from-abuse order. The Department of Homeland Security (“DHS“) initiated removal proceedings.
Sunuwar contested the DHS‘s charges of removability and, as relief from removal, sought asylum, withholding of removal under the
Sunuwar petitions for review, challenging these three aspects of the agency‘s decision. We conclude that there was no error in the deportability and particularly serious crime determinations, and that the agency‘s adverse credibility finding is supported by substantial evidence. So we will deny the petition.
I
A
In 2017, Sunuwar was admitted to the United States as a lawful permanent resident based on a diversity visa. On July 3, 2018, he was arrested and charged with first-degree aggravated assault, first-degree strangulation, and terroristic threats in the Court of Common Pleas of Dauphin County, Pennsylvania. The criminal complaint included an affidavit of probable cause prepared by Officer Blake Iorio, who was dispatched to the Sunuwar residence on the morning of the arrest.
According to the affidavit of probable cause, Officer Iorio observed that Rima had multiple injuries, including a “swollen and completely bloodshot” eye, “multiple large bruises on both her arms and knees,” additional “bruising around her neck,” and “scratch marks on her chin.” A.R. 405. Rima told Officer Iorio that Sunuwar continually
The day of Sunuwar‘s arrest, Rima filed a petition for emergency relief from abuse. She alleged that Sunuwar had beaten her repeatedly over the previous six weeks, including when she refused his sexual advances. The Dauphin County Night Court issued an order granting emergency protection from abuse that same day. The protection order required Sunuwar to, among other things, refrain from “abusing,” “harassing,” or “contacting” Rima. A.R. 437.
Sunuwar later pleaded guilty to contempt under
In May 2019, Sunuwar pleaded guilty to first-degree strangulation under
B
The DHS placed Sunuwar in removal proceedings. The DHS alleged that Sunuwar had been convicted of strangulation, and that a court determined that he violated part of an order involving protection against credible threats of violence, repeated harassment, or bodily injury to the person for whom the order was issued. Based on this conduct, the DHS charged Sunuwar with removability as an alien who was convicted of an aggravated felony, see
Sunuwar denied the removability charges. As relief from removal, he applied for asylum, withholding of removal under the INA, and CAT protection.2 He alleged
C
Sunuwar testified before an immigration judge (“IJ“) in support of his application. At the outset of the hearing, he amended his application to change the answer from “no” to “yes” in response to whether he had previously been harmed or mistreated in Nepal, but still did not specifically identify or describe any past harm. Sunuwar testified that, when he was about thirteen or fourteen years old (which would have been around 2006 or 2007), he was kidnapped by Maoists and held for three days, during which time he was stabbed twice in the stomach. He further testified that the Maoists told him that Nepal was at war and that he was required to help them fight, but that he was thereafter able to escape from them.
The IJ asked Sunuwar why he did not mention his kidnapping in his asylum application. Sunuwar responded that he did not know. He also stated that he was not sure whether he told his prior counsel about the incident when his application was written.
Sunuwar testified that after he escaped from his kidnappers, he and his family fled their village and moved to Kathmandu, where Maoists threatened and extorted them. Sunuwar did not provide specifics as to how he was threatened and extorted in Kathmandu, nor did he describe any other incidents where he was harmed in Nepal. He also testified that he was afraid that people who lent him money for his travel to the United States would attack him upon his return.
Sunuwar was asked about his attack on his wife, Rima. He testified that Rima became angry after seeing him speaking with another woman on the phone. She attacked him, and he slapped her in the face twice. Sunuwar denied trying to force Rima to have sex with him.
Sunuwar told the IJ that he pleaded guilty to strangulation because his attorney told him that doing so would secure him an earlier release. He admitted that he sent Rima letters while in jail and claimed to have believed that the protection order would not be effective until he “g[o]t out of jail.” A.R. 202.
Rima testified in support of her husband‘s application. She stated that Maoists twice kidnapped Sunuwar, once for “one and a half months,” and another time for “15 to 16 days.” A.R. 237. She denied many of the allegations in the affidavit of probable cause (which was based mainly on her statements to the police shortly after the incident), telling the IJ that Sunuwar slapped her, but did not choke or punch her. She further stated that Sunuwar did not put a knife to her throat, and suggested that the statement in the probable cause affidavit that Sunuwar did so was the result of a misinterpretation. Finally, Rima testified that she would face significant hardship if her husband were deported and pleaded with the IJ to forgive Sunuwar and give him a second chance.
The IJ found Sunuwar removable on all four charged grounds, including violation of a protection order under
The IJ determined that Sunuwar‘s conviction for strangulation was a particularly serious crime, rendering him ineligible for all forms of relief except deferral of removal under the CAT. The IJ considered the elements of the offense, the “rather significant period of incarceration,” and the factual allegations contained in the affidavit of probable cause. A.R. 82. “Given the gravity of the offense,” it was clear to the IJ that Sunuwar‘s conviction was for a particularly serious crime. A.R. 84.
Next, the IJ determined that neither Sunuwar nor his wife testified credibly. This finding was based on three inconsistencies. First, Sunuwar did not mention his alleged kidnap-ping in his written asylum application, even after he amended his application to note that he had suffered past harm. Second, Sunuwar and his wife offered starkly different testimony about his alleged mistreatment in Nepal. Lastly, Sunuwar and his wife offered very different accounts of Sunuwar‘s conduct on the night of July 2, 2018, in comparison with what is contained in the affidavit of probable cause.
After discounting Sunuwar‘s and Rima‘s testimony, the IJ denied Sunuwar‘s application for CAT deferral, which was based on a claimed fear of torture either by Maoists or by people who loaned him money to travel to the United States. The IJ found that Sunuwar‘s lack of credibility undermined his claims and that, even considering background evidence on conditions in Nepal, he had not established facts demonstrating that he would likely be tortured if returned to his country.
E
Sunuwar appealed to the Board of Immigration Appeals (“BIA“). The BIA ruled against him. It first affirmed that Sunuwar is removable under
This timely petition for review followed.
II
We have jurisdiction over this petition for review of a final order of removal under
We review questions of law, including issues of statutory interpretation, de novo, subject to applicable principles of deference. See Smriko v. Ashcroft, 387 F.3d 279, 282 (3d Cir. 2004). We review the agency‘s factual findings under the “highly deferential” substantial-evidence standard: “The agency‘s ‘findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.‘” Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020) (quoting
III
Sunuwar challenges the agency‘s findings that (1) he is deportable; (2) he committed a particularly serious crime; and (3) his testimony was not credible. We address each issue in turn.
A
The BIA found Sunuwar deportable under
Any alien who at any time after admission is enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of a protection order that involves protection against
credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable. For purposes of this clause, the term “protection order” means any injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or child custody orders or provisions) whether obtained by filing an independent action or as a pendente lite order in another proceeding.
For an alien to be deportable under this provision: (1) there must have been a protection order entered by a court against the alien; (2) at least one portion of that order must have involved protection against a credible threat of violence, repeated harassment, or bodily injury; and (3) “a court must have determined that the alien engaged in conduct that violated that
It is undisputed that Sunuwar was convicted of contempt for violating the protection order issued against him. But Sunuwar contends that because his conduct in violation of the protection order consisted solely of writing four non-threatening letters to Rima, he is not deportable. That argument clashes with the language of the statute. It does not matter whether the letters Sunuwar sent to his wife in violation of the order threatened violence.4 What matters is that the portion of the order that Sunuwar was found to have violated when he
sent the letters involved protecting Rima from threats of violence, repeated harassment, or bodily injury. The BIA has held, and we agree, that the no-contact provisions of a protection order inherently involve “protection against credible threats of violence, repeated harassment, or bodily injury,” and therefore fall under
The order entered against Sunuwar qualifies as a “protection order” because it was “issued for the purpose of preventing violent or threatening acts of domestic violence.”
B
After finding Sunuwar deportable, the agency determined that his criminal conduct made him ineligible for asylum, withholding of removal under the INA, and withholding of removal under the CAT. An alien is ineligible for asylum if, “having been convicted by a final judgment of a particularly serious crime, [he is] a danger to the community of the United States.”
The phrase “particularly serious crime” includes offenses other than aggravated felonies. Bastardo-Vale v. Att‘y Gen., 934 F.3d 255, 267 (3d Cir. 2019) (en banc). While some offenses are per se particularly serious, “the Attorney General [also] retains the authority, through a case-by-case evaluation of the facts surrounding
Sunuwar brings three challenges to the agency‘s particularly-serious-crime determination. First, strangulation is not that serious because “mere touching without violence, force, or injury could violate” the Pennsylvania statute. Pet‘r Br. 24. Second, the sentence imposed on him was relatively light—“less than two years” for an offense “that carried a maximum of twenty years.” Id. Third, the “circumstances behind the conviction” indicate that this was a “mere mutual scuffle.” Id. at 24–25. Each challenge lacks merit.
1
First, there is no indication from the text of the Pennsylvania statute that mere touching without force could constitute strangulation. As the government correctly explains, “the statute requires the offender to apply pressure to the neck or throat of another person or block the nose and mouth of the person, that pressure or blockage must impede that person‘s breathing or circulation, and the offender [must have] knowingly or intentionally engaged in that conduct.” Resp‘t Br. 40. Strangulation is, of course, a violent crime, and we see no reason to doubt the agency‘s determination that its elements potentially make Sunuwar‘s offense a particularly serious crime. See Denis v. Att‘y Gen., 633 F.3d 201, 216 (3d Cir. 2011).
2
Second, while it is true that Sunuwar‘s sentence was relatively minor compared to the maximum sentence authorized by applicable law, that does not prevent his offense from being a particularly serious crime. We recently sustained a particularly-serious-crime determination where an alien received a non-custodial sentence of time served. See Nkomo v. Att‘y Gen., 930 F.3d 129, 135 (3d Cir. 2019). In Nkomo, we underscored that particularly-serious-crime determinations are “not amenable to bright line rules” and that, while the sentence imposed may be factored in, it is not a dominant factor. Id. (citing In re N-A-M-, 24 I. & N. Dec. at 342–43). The agency‘s determination that the sentence length favored deeming Sunuwar‘s crime particularly serious was not erroneous.
3
Sunuwar‘s final challenge can prevail only if we accept his version of what happened during his conflict with his wife and disregard the affidavit of probable cause attesting to Rima‘s injuries. But the agency may consider all reliable information in making its particularly-serious-crime assessment, including an affidavit of probable cause. See Luziga, 937 F.3d at 253.
* * *
The BIA has “broad discretion” to decide whether an offense is a particularly serious crime. Nkomo, 930 F.3d at 134. In light of that discretion, we reject Sunuwar‘s challenges to the BIA‘s determination that his strangulation offense was a particularly serious crime. Sunuwar‘s crime disqualifies him from all forms of relief from removal except deferral of removal under the CAT.
C
After determining that Sunuwar had committed a particularly serious crime, the agency denied Sunuwar‘s application for CAT deferral mainly on the ground that, because his testimony was not credible, he was unable to establish that he would more likely than not be tortured if removed to Nepal. We review this finding of fact for substantial evidence, meaning that the agency‘s determination is conclusive unless the record compels a contrary determination. See Dia, 353 F.3d at 247–48.
It is usually difficult for a petitioner to prevail on an issue where the substantial-evidence standard of review applies. But Sunuwar‘s hurdle in trying to overturn the agency‘s adverse credibility finding is higher still, because his application for relief from removal was filed after the effective date of the
But Congress grew “[d]issatisfied with judicial reluctance to accept immigration judges’ credibility decisions.” Mitondo v. Mukasey, 523 F.3d 784, 787 (7th Cir. 2008). So, for applications filed after May 11, 2005, the Act replaces our “judicially-created standard” and “allow[s] a trier of fact to find a lack of credibility based on any inconsistency or falsehood, ‘without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant‘s claim.‘” Zheng, 417 F.3d at 381 n.1 (quoting
“only the most extraordinary circumstances ... justify overturning
With these principles in mind, we consider the inconsistencies and omissions8 that undergirded the agency‘s
Considering the totality of the circumstances, and all relevant factors, [an IJ] may base a credibility determination on 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 ... , the internal consistency of each such statement, the consistency of such statements with other evidence of record ... , and any inaccuracies or falsehoods in such statements, [whether or not] an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant‘s claim, or any other relevant factor.
adverse credibility finding. The agency gave three principal reasons to support its finding: (1) the evidence was inconsistent as to the number and length of Sunuwar‘s alleged kidnappings, with Sunuwar testifying that Maoists kidnapped him once for three days, and Rima testifying that Maoists kidnapped Sunuwar twice, once for fifteen or sixteen days and again for forty-five days; (2) Sunuwar initially did not even mention his alleged kidnapping and stabbing—his sole incident alleging past physical harm—in his asylum application; and (3) Sunuwar‘s and Rima‘s accounts of the events giving rise to the strangulation conviction conflicted starkly with the allegations in the affidavit of probable cause. We discuss each inconsistency and omission individually.
1
Sunuwar first argues that his testimony regarding the length and number of kidnappings can be reconciled with Rima‘s. While Rima testified that Sunuwar was kidnapped twice, both times for far longer than three days, Sunuwar explains that he and his wife were “describing different events.” Pet‘r Br. 27. Sunuwar never expressly stated that he had been kidnapped only once, so Rima‘s testimony describes additional kidnappings that he neglected to mention. Sunuwar thus maintains that Rima never contradicted his testimony that he experienced a kidnapping lasting three days, and that the agency erred in discounting his testimony on this basis.
This explanation fails because it does not compel a reasonable factfinder to excuse the inconsistency or to credit Sunuwar‘s testimony. We agree with the government that “[i]f Sunuwar had actually been kidnapped more than the one time he alleged, he needed to say so.” Resp‘t Br. 28. The agency properly concluded that this clear and significant discrepancy between Sunuwar‘s and Rima‘s testimony called Sunuwar‘s credibility into serious question. And the agency‘s reliance on this discrepancy in assessing credibility is even more appropriate because Sunuwar was given ample opportunity to provide additional detail regarding any past harm he suffered, but failed to do so. The agency did not err in relying on this discrepancy as a reason to disregard Sunuwar testimony.
2
Sunuwar next claims that his prior counsel is at fault for the fact that his
3
Finally, Sunuwar contends that the agency erred in relying on the probable-cause affidavit prepared by Officer Iorio to disregard both Sunuwar‘s and Rima‘s testimony about the facts giving rise to the strangulation conviction. Sunuwar asserts that it is “beyond reprehensible that an IJ would rely on [the affidavit] as reliable evidence that has been proven beyond a reasonable doubt.” Pet‘r Br. 30. But the IJ did no such thing. The IJ simply deemed the probable-cause affidavit, which was completed and signed by a trained police officer, to be more reliable evidence than his and Rima‘s testimony. This weighing of evidence is permitted by the REAL ID Act. See
* * *
Under the substantial-evidence standard, we defer to an IJ‘s credibility determination unless “no reasonable fact finder could make that finding on the administrative record.” Dia, 353 F.3d at 249. The multiple inconsistencies present here “forcefully” preclude Sunuwar from showing that the IJ “was compelled to find him credible.” Gao v. Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020). Because the agency‘s adverse credibility finding was reasonable, we may not disturb it.
In the circumstances of this case, it is clear that Sunuwar cannot prevail on his CAT claim without credible testimony. Because we uphold the agency‘s adverse credibility finding as supported by substantial evidence, we also uphold the agency‘s decision to deny CAT protection. Sunuwar has not established that he would
IV
The agency correctly determined that Sunuwar is deportable and that he committed a particularly serious crime. In addition, the agency‘s adverse credibility finding is supported by substantial evidence. We will therefore deny the petition for review.