Case Information
ag IN THE
United States Court of Appeals
For the Second Circuit
________
A UGUST T ERM ,
S UBMITTED : M AY
D ECIDED : J ULY
No. J HOK B AHADUR G URUNG ,
Petitioner, W ILLIAM P. B ARR , United States Attorney General,
Respondent. ________
On Petition Review Board Immigration Appeals
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Before: C ALABRESI L OHIER Circuit Judges D ONNELLY District Judge
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Judge Ann M. Donnelly, United States District Court Eastern District New York, sitting designation.
Gurung
Jhok Bahadur Gurung challenges denial of application asylum and related relief. The Immigration Judge denied relief solely finding Gurung credible. That finding stemmed from three purported inconsistencies in testimony regarding: (1) dates Gurung received medical treatment after assaulted in members of Maoist Party; (2) details of encounter police following attack; (3) severity of father’s injuries after assault in Board of Immigration Appeals affirmed Immigration Judge’s ruling. On review, conclude second third asserted inconsistencies do amount all. As first inconsistency, doubtful would—on its own—justify finding. But, in any event, believe remanding case futile. We therefore GRANT petition review, VACATE order of removal, REMAND case.
J HOK B AHADUR G URUNG (pro se), in support of Petitioner.
S COTT M. M ARCONDA J ESSICA E. B URNS (U.S. Department of Justice, Civil Division, Office of Immigration Litigation), C HAD A. R EADLER (U.S. Department Justice, Civil Division), in of Respondent
C ALABRESI Circuit Judge :
Petitioner Jhok Bahadur native citizen Nepal. seeks relief political persecution form asylum, withholding removal, protection under Convention Against Torture. Relying exclusively purported inconsistencies testimony, Immigration Judge (IJ) Board Immigration Appeals (BIA) denied petition grounds. sought review denial federal court. A member our Court, sitting the non argument calendar panel, determined that this case should be heard our regular argument calendar. Having now reviewed petition as part that calendar, remand the case to the BIA take the opportunity to address two issues that the petition raises.
First what kinds statements should be treated as “inconsistent” making finding? Simply because two are not identical does mean are inconsistent. Given inconsistency finding places heavy burden the applicant, it is especially important for the IJ the BIA apply the correct standard. Hard as it is explain away true inconsistencies, it even harder “justify” inconsistency does exist.
Second what proper remedy IJ the BIA have committed legal error, but some evidence exists might sufficient—on its own—to support agency’s findings? those situations, correct course remand case BIA, unless doing would futile. mere possibility Court may believe remaining evidence would sufficient agency’s conclusion justify affirmance. case, mistook two discrepancies wording
as inconsistencies. One possible remains. Because certain reached conclusion absence errors made, GRANT petition review, VACATE order removal, REMAND case Board Immigration Appeals further proceedings consistent opinion. Gurung
FACTUAL BACKGROUND
Gurung entered United States a B temporary visa. After his visa expired, Gurung applied asylum, withholding of removal, and Convention Against Torture relief. Gurung’s application asserted that, he returned to Nepal, members Maoist Party persecute because of his National Democratic Party (NDP). application contained, relevant part, testimony he was victim two politically motivated assaults before he escaped to United States. A summary allegations follows.
1. Assault. Soon after Maoists murdered uncle because NDP activism fall they targeted Gurung his father, who had both refused pledge allegiance to Maoist Party. In testimony, Gurung explained: “[M]y father I were taken a remote area where were beaten all over bodies my father had serious injuries sustained this attack; he was beaten almost death. I was beaten severely I lost consciousness.” Cert. Admin. R. 154. During hearing before IJ, Gurung stated: “they beat [my father] very badly, but like he going die, like that. He old, so he got more injuries.” Id . Shortly after this assault, left village escaped Kathmandu. city, Gurung opened guest house. As business flourished, he made financial contributions NDP. Assault. April members Maoist Party came hotel demanded donation. told them had no cash, agreed return following month. After incident, went ‐ Gurung into hiding. According to declaration, late one night in February 2012, he found and abducted by members Maoist Party. The abductors put Gurung in a van, blindfolded him, and drove for about minutes to a jungle area, suburbs Kathmandu. Maoists locked Gurung in a dark room and severely beat him for hours. In morning, Maoists told Gurung he didn’t pay a large contribution to Maoist Party, kill him. They released Gurung after he promised to donate one million rupees to Maoist Party.
Once Gurung made way home, he went hospital police. According hospital records—an “O.P.D. Ticket” booklet (a medical chart sorts), id. at 92, a later letter signed treating physician—Gurung complained assault received x rays, stiches, fluids, various prescriptions. After he returned home, Gurung also attempted report attack police, no avail.
Gurung subsequently sold hotel went further into hiding, “changing [his] apartment one place another, like one month one place, another month another place.” Id He learned members Maoist Party continued look for former hotel. On July 3, 2012, left Nepal.
PROCEDURAL BACKGROUND arrived United States July 4, 2012, B visa, which
expired January September 2013, he applied asylum related relief. November placed removal proceedings overstaying visa. After merits hearing, during which testified through help Gurung interpreter, the IJ denied all relief. making her finding, the IJ relied mainly on what she deemed three inconsistencies.
First, the IJ noted how “wrote own written statement that father was beaten ‘almost death’ . [but] [i]n court, [Gurung] indicated ‘they beat very badly but it’s like he was going die.’” Id. at 31. the eyes the IJ, was “minor inconsistency.” Id
Second written declaration stated that, “even though police took my complaint they can’t help protect me my family.” Id. at (emphasis added). Yet, during hearing, testified “[p]olice refused take report ” because “[t]his [a] political matter,” id. at (emphasis added); police, he explained, “looked at” complaint then “return[ed]” him, id. at 95. IJ found these about police unexplained.
Third testimony indicated he was abducted February released following day. At hearing, first affirmed he “[h]alf conscious” he taken hospital “two or hours after [he] returned,” February 11. Id. at 90. Later on, he stated he “was afraid Maoists attack [him],” he hid home “for two days” went hospital February Id. at 92. But, noted, medical records dated February attempt explaining inconsistency—“[m]aybe put date [on O.P.D. Ticket], day [he] paid off bill there,” said, id. 91—did convince IJ.
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Relying these inconsistencies, ruled credible ordered removed. After BIA affirmed IJ’s ruling grounds, petitioned our Court for review.
DISCUSSION
Congress has specified IJ’s “administrative findings fact are conclusive unless any reasonable adjudicator be compelled conclude contrary.” 8 U.S.C. § 1252(b)(4)(B). Our Court has interpreted statutory standard mean IJ’s factual findings—including her determinations—merit deference long supported substantial evidence. See Xue Hong Yang v. U.S. Dep ʹ t Justice F.3d 520, 522 (2d Cir. 2005). The “substantial evidence” standard requires factual findings based “reasonable, substantial[,] probative evidence record.” Lin Zhong v. U.S. Dep ʹ t Justice (2d Cir. 2007) (quoting Islami Gonzales F.3d (2d Cir. 2005)).
But, dealing cases like this, must also mindful Supreme Court’s holding S.E.C. Chenery Corp ., U.S. (1943). Chenery instructs us “a judicial judgment made service administrative judgment.” Id . That because, if administrative order “based upon determination law [, that] order may stand agency has misconceived law.” Id. must reconsider matter free error made. For these reasons, Court has repeatedly held that, where factual findings “rely upon legal errors, appropriate remedy generally vacate those findings remand reconsideration applicant’s claim.” v. Li Hua Lin U.S. Dep ʹ t of Justice F.3d (2d Cir. 2006). But we must so, we added, unless a remand would be futile. Id. Gurung’s case, we conclude two of purported
inconsistencies which IJ relied were inconsistencies all. And have doubts that—in absence of those errors—the would reached same conclusion based third inconsistency alone. We therefore say, required by Chenery Li Hua Lin remanding case futile.
I. first two purported inconsistencies noted IJ—concerning
severity father’s beating details of Gurung’s encounter with police—are fact inconsistent. reviewing IJ’s evaluation a witness’s credibility, require evaluation “tethered evidentiary record.” Siewe Gonzales (2d Cir. 2007). And, here, conclude a reasonable reading record fails finding.
That father beaten “almost death” just another way saying elderly person beaten “very badly.” This what later statement asserted.
Similarly, account exchange police consistent. He handed over complaint, took it read it. They then handed it back without filing report.
We believe well worth emphasizing trivial differences wording describing event sufficient create ‐ 3883 ‐ v. inconsistencies. This especially where an immigrant applicant relying an interpreter convey story, as did here.
Credibility should questioned based trivial differences in word choices alone. Once inconsistency has been identified, “[a] petitioner must more than offer a plausible explanation secure relief; must demonstrate that a reasonable fact finder compelled credit testimony.” Majidi Gonzales F.3d 77, (2d Cir. 2005) (internal quotation marks citations omitted). It essential petitioners asked meet this stringent standard where there is, indeed, something explain away.
II.
This leaves us with third possible inconsistency IJ identified: dates assault hospitalization.
Because based her determination totality circumstances as she evaluated them, say confidence inconsistency alone—between February February 2012—amounts “substantial evidence” capable supporting adverse credibility finding. As recently explained Hong Fei Gao Sessions (2d Cir. 2018), “[a] trivial has no tendency suggest petitioner fabricated or her claim will determination.” Therefore, example, held “a reasonable fact finder could conclude [a petitioner]’s undermined solely minor inconsistencies remaining her testimony about whether her mother law taken *10 16 3883
hostage on September 22 or 23 of 2000 or when she notified about the . fine.” Su Chun Hu Holder F.3d 160 (2d Cir. 2009) (per curiam). [1]
But we do not need go as far as we did in Hong Fei Gao or Su Chun Hu at time in this case. When an administrative agency—as here—has based its decision in part legal error, is important remember what our Court’s role is. In such situations, our job generally not decide whether the agency could reached the same result based the remaining evidence. The standard we apply not sufficiency of the evidence. Chenery forecloses that. See U.S. at (concluding administrative ruling “may not stand if the agency has misconceived the law”).
At time, we are cognizant of extraordinary number of vacaturs remands intransigent interpretation of Chenery require. In immigration context, errors by overworked IJs are inevitably legion. Therefore, where or has committed legal error, will nonetheless affirm as long as can consistently with Chenery That is, will affirm remanding the case the agency would futile—namely, “a) when the articulates alternative sufficient basis for her determination; b) when her reliance the erroneous aspect her reasoning is substantially tangential her non erroneous findings; or c) overwhelming evidence the record makes clear that the same decision is inevitable remand, or, short, whenever the reviewing panel is confident that agency would reach same result upon reconsideration cleansed errors .” Li Hua Lin other words, under Chenery Li Hua Lin we affirm simply because we believe agency likely come out same way, or because we would—in our own judgment—come out way. When agency has denied asylum related relief credibility grounds, we can (and we will) affirm (a) agency offered clearly independent sufficient ground for its ruling, one not affected any erroneous adverse findings, or (b) evidentiary record includes can confident agency would accept any kind explanation. instant case, have doubts that—in absence legal error—the agency would reached conclusion. Accordingly, need decide whether, under precedents, concerning dates assault hospitalization sufficient justify finding all. Remanding clearly futile.
CONCLUSION
We GRANT petition review, VACATE BIA’s order removal, REMAND case reconsideration consistent opinion.
[1] In asserting inconsistency concerning dates hospitalization, relies in part omissions in application. That probably erroneous. Although submitted documents proving received medical treatment following assault, written statement did not mention trip hospital. Similarly, wife’s letter did not say anything about it. our recent opinion Hong Fei Gao however, Court has pointed out how “omissions less probative than inconsistencies created direct contradictions evidence testimony.” at (internal quotation marks citations omitted). particular, omission from statement any reference medical treatment, Hong Fei Gao “was with [his] initial accounts. information supplementary, contradictory: [his] beating[] warranted medical attention reinforces [his] claims persecution.” Id. Similarly, fact letter wife omitted visit hospital has “little, any, weight”—because, “where third party’s omission creates no applicant’s own statements,” petitioner need “speculate about state mind” third party. Id.