Gurung v. Barr, No. 16-3883 (2d Cir. 2019)
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The Second Circuit granted a petition for review of the BIA's denial of petitioner's application for asylum and related relief based on the IJ's finding that petitioner was not credible. The court held that the asserted inconsistencies between the details of his encounter with police following his attack and the severity of his father's injuries after an assault did not amount to inconsistent statements at all. Furthermore, petitioner's inconsistent statements regarding the dates when he received medical treatment after he was assaulted -- on its own -- did not justify an adverse credibility finding. In any event, remand to the agency would not be futile. Accordingly, the court vacated the order of removal and remanded.
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16 3883 ag Gurung v. Barr 1 IN THE 2 United States Court of Appeals 3 For the Second Circuit 4 ________ 5 6 7 8 9 10 11 AUGUST TERM, 2018 SUBMITTED: MAY 31, 2019 DECIDED: JULY 8, 2019 No. 16 3883 ag 12 JHOK BAHADUR GURUNG, Petitioner, 13 14 15 16 v. 17 WILLIAM P. BARR, United States Attorney General, 18 19 20 21 22 23 24 25 26 27 28 29 Respondent. ________ On Petition for Review from the Board of Immigration Appeals ________ Before: CALABRESI and LOHIER, Circuit Judges, and DONNELLY, District Judge. ________ 30 Judge Ann M. Donnelly, of the United States District Court for the Eastern District of New York, sitting by designation. 16 3883 ag – Gurung v. Barr 1 Jhok Bahadur Gurung challenges the denial of his application for asylum and 2 related relief. The Immigration Judge denied relief solely on a finding that Gurung was 3 not credible. That finding stemmed from three purported inconsistencies in Gurung’s 4 testimony regarding: (1) the dates when Gurung received medical treatment after he was 5 assaulted in 2012 by members of the Maoist Party; (2) the details of his encounter with 6 the police following this attack; and (3) the severity of his father’s injuries after an assault 7 in 2000. The Board of Immigration Appeals affirmed the Immigration Judge’s ruling. On 8 review, we conclude that the second and third asserted inconsistencies do not amount to 9 inconsistent statements at all. As to the first inconsistency, we are doubtful that it 10 would—on its own—justify an adverse credibility finding. But, in any event, we do not 11 believe that remanding the case to the agency would be futile. We therefore GRANT 12 Gurung’s petition for review, VACATE the order of removal, and REMAND the case. 13 14 15 JHOK BAHADUR GURUNG (pro se), in support of Petitioner. 16 SCOTT M. MARCONDA, JESSICA E. BURNS (U.S. Department of Justice, Civil 17 Division, Office of Immigration Litigation), CHAD A. READLER (U.S. 18 Department of Justice, Civil Division), in support of Respondent. 19 20 21 CALABRESI, Circuit Judge: 22 Petitioner Jhok Bahadur Gurung is a native and citizen of Nepal. Gurung 23 seeks relief from political persecution in the form of asylum, withholding of 24 removal, and protection under the Convention Against Torture. Relying 25 exclusively on three purported inconsistencies in Gurung’s testimony, the 26 Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) denied 27 Gurung’s petition on credibility grounds. Gurung sought review of that denial in 2 16 3883 ag – Gurung v. Barr 1 federal court. A member of our Court, sitting on the non argument calendar panel, 2 determined that this case should be heard on our regular argument calendar. 3 Having now reviewed Gurung’s petition as part of that calendar, we remand the 4 case to the BIA and take the opportunity to address two issues that the petition 5 raises. 6 First, what kinds of statements should be treated as “inconsistent” in 7 making an adverse credibility finding? Simply because two statements are not 8 identical does not mean that they are inconsistent. Given that an inconsistency 9 finding places a heavy burden on the applicant, it is especially important for the IJ 10 and the BIA to apply the correct standard. Hard as it is to explain away true 11 inconsistencies, it is even harder to “justify” an inconsistency that does not exist. 12 Second, what is the proper remedy when the IJ and the BIA have committed 13 legal error, but some evidence exists that might be sufficient—on its own—to 14 support the agency’s findings? In those situations, the correct course is to remand 15 the case to the BIA, unless doing so would be futile. The mere possibility that our 16 Court may believe the remaining evidence would be sufficient to support the 17 agency’s conclusion cannot justify affirmance. 18 In Gurung’s case, the IJ and the BIA mistook two discrepancies in wording 19 as inconsistencies. One possible inconsistency remains. Because we are not certain 20 that the agency would have reached the same conclusion as to Gurung’s credibility 21 in the absence of the errors it made, we GRANT Gurung’s petition for review, 22 VACATE the order of removal, and REMAND the case to the Board of 23 Immigration Appeals for further proceedings consistent with this opinion. 24 3 16 3883 ag – Gurung v. Barr FACTUAL BACKGROUND 1 2 Gurung entered the United States in 2012 on a B 1 temporary visa. After his 3 visa expired, Gurung applied for asylum, withholding of removal, and 4 Convention Against Torture relief. Gurung’s application asserted that, if he 5 returned to Nepal, members of the Maoist Party would persecute him because of 6 his support for the National Democratic Party (NDP). Gurung’s application 7 contained, in relevant part, testimony that he was the victim of two politically 8 motivated assaults before he escaped to the United States. A summary of Gurung’s 9 allegations follows. 10 1. 2000 Assault. Soon after the Maoists murdered Gurung’s uncle because 11 of his NDP activism in the fall of 2000, they targeted Gurung and his father, who 12 had both refused to pledge allegiance to the Maoist Party. In his written testimony, 13 Gurung explained: “[M]y father and I were taken to a remote area where we were 14 beaten all over our bodies and my father had serious injuries sustained from this 15 attack; he was beaten almost to death. I was beaten severely and I lost 16 consciousness.” Cert. Admin. R. 154. During the hearing before the IJ, Gurung 17 stated: “they beat [my father] very badly, but it is not like he was going to die, not 18 like that. . . . He was old, so he got more injuries.” Id. at 87 88. Shortly after this 19 assault, Gurung left his village and escaped to Kathmandu. In the city, Gurung 20 opened a guest house. As his business flourished, he made financial contributions 21 to the NDP. 22 2. 2012 Assault. In April 2008, members of the Maoist Party came to 23 Gurung’s hotel and demanded a donation. Gurung told them that he had no cash, 24 so they agreed to return the following month. After this incident, Gurung went 4 16 3883 ag – Gurung v. Barr 1 into hiding. According to Gurung’s written declaration, late one night in February 2 2012, he was found and abducted by members of the Maoist Party. The abductors 3 put Gurung in a van, blindfolded him, and drove for about 90 minutes to a jungle 4 area, in the suburbs of Kathmandu. The Maoists locked Gurung in a dark room 5 and severely beat him for three hours. In the morning, the Maoists told Gurung 6 that if he didn’t pay a large contribution to the Maoist Party, they would kill him. 7 They released Gurung only after he promised to donate one million rupees to the 8 Maoist Party. 9 Once Gurung made his way home, he went to the hospital and to the police. 10 According to the hospital records—an “O.P.D. Ticket” booklet (a medical chart of 11 sorts), id. at 187 92, and a later letter signed by the treating physician—Gurung 12 complained of an assault and received x rays, stiches, fluids, and various 13 prescriptions. After he returned home, Gurung also attempted to report the attack 14 to the police, to no avail. 15 Gurung subsequently sold his hotel and went further into hiding, “changing 16 [his] apartment from one place to another, like one month one place, another 17 month another place.” Id. at 83. He learned that members of the Maoist Party 18 continued to look for him at his former hotel. On July 3, 2012, Gurung left Nepal. 19 PROCEDURAL BACKGROUND 20 Gurung arrived in the United States on July 4, 2012, on a B 1 visa, which 21 expired on January 3, 2013. In September 2013, he applied for asylum and related 22 relief. In November 2013, he was placed in removal proceedings for overstaying 23 his visa. After a merits hearing, during which Gurung testified through the help 5 16 3883 ag – Gurung v. Barr 1 of an interpreter, the IJ denied all relief. In making her adverse credibility finding, 2 the IJ relied mainly on what she deemed to be three inconsistencies. 3 First, the IJ noted how Gurung “wrote in his own written statement that his 4 father was beaten ‘almost to death’ . . . [but] [i]n court, [Gurung] indicated that 5 ‘they beat him very badly but it’s not like he was going to die.’” Id. at 31. In the 6 eyes of the IJ, this was a “minor inconsistency.” Id. 7 Second, Gurung’s written declaration stated that, “even though the police 8 took my complaint, they can’t help and protect me and my family.” Id. at 156 9 (emphasis added). Yet, during the hearing, Gurung testified that the “[p]olice 10 refused to take a report” because “[t]his is [a] political matter,” id. at 82 (emphasis 11 added); the police, he explained, “looked at” his complaint and then “return[ed]” 12 it to him, id. at 95. The IJ found these statements about the police to be inconsistent 13 and unexplained. 14 Third, Gurung’s written testimony indicated that he was abducted on 15 February 10, 2012, and released the following day. At the hearing, Gurung first 16 affirmed that he was “[h]alf conscious” when he was taken to the hospital “two or 17 three hours after [he] returned,” on February 11. Id. at 90. Later on, he stated that 18 he “was afraid that the Maoists would attack [him],” so he hid in his home “for 19 two days” and went to the hospital on February 13. Id. at 91 92. But, the IJ noted, 20 Gurung’s medical records are dated February 20. Gurung’s attempt at explaining 21 the inconsistency—“[m]aybe they put the date [on the O.P.D. Ticket], the day [he] 22 paid off the bill there,” he said, id. at 90 91—did not convince the IJ. 6 16 3883 ag – Gurung v. Barr 1 Relying on these three inconsistencies, the IJ ruled that Gurung was not 2 credible and ordered him removed. After the BIA affirmed the IJ’s ruling on the 3 same credibility grounds, Gurung petitioned our Court for review. DISCUSSION 4 5 Congress has specified that an IJ’s “administrative findings of fact are 6 conclusive unless any reasonable adjudicator would be compelled to conclude to 7 the contrary.” 8 U.S.C. § 1252(b)(4)(B). Our Court has interpreted this statutory 8 standard to mean that the IJ’s factual findings—including her adverse credibility 9 determinations—merit deference so long as they are supported by substantial 10 evidence. See Xue Hong Yang v. U.S. Dep t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). 11 The “substantial evidence” standard requires that the factual findings be based on 12 “reasonable, substantial[,] and probative evidence in the record.” Lin Zhong v. U.S. 13 Dep t of Justice, 480 F.3d 104, 116 (2d Cir. 2007) (quoting Islami v. Gonzales, 412 F.3d 14 391, 396 (2d Cir. 2005)). 15 But, in dealing with cases like this, we must also be mindful of the Supreme 16 Court’s holding in S.E.C. v. Chenery Corp., 318 U.S. 80 (1943). Chenery instructs us 17 that “a judicial judgment cannot be made to do service for an administrative 18 judgment.” Id. at 88. That is because, if the administrative order is “based upon a 19 determination of law . . . [, that] order may not stand if the agency has misconceived 20 the law.” Id. at 94. The agency must reconsider the matter free from the error it 21 made. For these reasons, our Court has repeatedly held that, where factual 22 findings “rely upon legal errors, the appropriate remedy is generally to vacate 23 those findings and remand to the BIA for reconsideration of an applicant’s claim.” 7 16 3883 ag – Gurung v. Barr 1 Li Hua Lin v. U.S. Dep t of Justice, 453 F.3d 99, 106 (2d Cir. 2006). But we must do 2 so, we added, only unless a remand would be futile. Id. at 106 07. 3 In Gurung’s case, we conclude that two of the three purported 4 inconsistencies on which the IJ relied were not inconsistencies at all. And we have 5 doubts that—in the absence of those errors—the IJ would have reached the same 6 conclusion based on the third inconsistency alone. We therefore cannot say, as 7 required by Chenery and Li Hua Lin, that remanding the case to the BIA would be 8 futile. I. 9 10 The first two purported inconsistencies noted by the IJ—concerning the 11 severity of Gurung’s father’s beating and the details of Gurung’s encounter with 12 the police—are not in fact inconsistent. In reviewing an IJ’s evaluation of a 13 witness’s credibility, we require that evaluation to be “tethered to the evidentiary 14 record.” Siewe v. Gonzales, 480 F.3d 160, 169 (2d Cir. 2007). And, here, we conclude 15 that a reasonable reading of the record fails to support an inconsistency finding. 16 That Gurung’s father was beaten “almost to death” is just another way of 17 saying that an elderly person was beaten “very badly.” This is what Gurung’s later 18 statement asserted. 19 Similarly, Gurung’s account of his exchange with the police is consistent. He 20 handed over a written complaint, and they took it and read it. They then handed 21 it back to him without filing a report. 22 We believe it to be well worth emphasizing that trivial differences in the 23 wording of statements describing the same event are not sufficient to create 8 16 3883 ag – Gurung v. Barr 1 inconsistencies. This is especially so where an immigrant applicant is relying on 2 an interpreter to convey his story, as Gurung did here. 3 Credibility should not be questioned based on trivial differences in word 4 choices alone. Once an inconsistency has been identified, “[a] petitioner must do 5 more than offer a plausible explanation for his inconsistent statements to secure 6 relief; he must demonstrate that a reasonable fact finder would be compelled to 7 credit his testimony.” Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (internal 8 quotation marks and citations omitted). It is essential that petitioners be asked to 9 meet this stringent standard only where there is, indeed, something to explain 10 11 12 13 away. II. This leaves us with the third possible inconsistency that the IJ identified: the dates of Gurung’s 2012 assault and hospitalization. 14 Because the IJ based her determination on the totality of the circumstances 15 as she evaluated them, we cannot say with confidence that this inconsistency 16 alone—between February 10 and February 20, 2012—amounts to “substantial 17 evidence” capable of supporting an adverse credibility finding. As we recently 18 explained in Hong Fei Gao v. Sessions, 891 F.3d 67, 77 (2d Cir. 2018), 19 “[a] trivial inconsistency . . . that has no tendency to suggest a petitioner fabricated 20 his or her claim will not support an adverse credibility determination.” Therefore, 21 for example, we have held that “a reasonable fact finder could not conclude that 22 [a petitioner]’s credibility was undermined solely by the minor inconsistencies 23 remaining in her testimony about whether her mother in law was taken as a 9 16 3883 ag – Gurung v. Barr 1 hostage on September 22 or 23 of 2000 or when she was notified about the . . . fine.” 2 Su Chun Hu v. Holder, 579 F.3d 155, 160 (2d Cir. 2009) (per curiam). 1 3 But we do not need to go as far as we did in Hong Fei Gao or Su Chun Hu at 4 this time in this case. When an administrative agency—as here—has based its 5 decision in part on a legal error, it is important to remember what our Court’s role 6 is. In such situations, our job is generally not to decide whether the agency could 7 have reached the same result based on the remaining evidence. The standard that 8 we apply is not sufficiency of the evidence. Chenery forecloses that. See 318 U.S. at 9 94 (concluding that an administrative ruling “may not stand if the agency has 10 misconceived the law”). 11 At the same time, we are cognizant of the extraordinary number of vacaturs 12 and remands that an intransigent interpretation of Chenery would require. In the 13 immigration context, errors by overworked IJs are inevitably legion. Therefore, 14 where the IJ or the BIA has committed legal error, we will nonetheless affirm as 15 long as we can do so consistently with Chenery. That is, we will affirm only when In asserting the inconsistency concerning the dates of his hospitalization, the agency relies in part on 1 omissions in Gurung’s application. That is probably erroneous. Although Gurung submitted documents proving he received medical treatment following the 2012 assault, his written statement did not mention his trip to the hospital. Similarly, his wife’s letter did not say anything about it. In our recent opinion in Hong Fei Gao, however, our Court has pointed out how “omissions are less probative of credibility than inconsistencies created by direct contradictions in evidence and testimony.” 891 F.3d at 78 (internal quotation marks and citations omitted). In particular, the omission from Gurung’s written statement of any reference to medical treatment, as in Hong Fei Gao, “was not inconsistent with [his] initial accounts. The information was supplementary, not contradictory: that [his] beating[] warranted medical attention reinforces [his] claims of persecution.” Id. at 79. Similarly, the fact that the letter from Gurung’s wife omitted the visit to the hospital has “little, if any, weight”—because, “where a third party’s omission creates no inconsistency with an applicant’s own statements,” the petitioner need not “speculate about the state of mind” of that third party. Id. at 81. 10 16 3883 ag – Gurung v. Barr 1 remanding the case to the agency would be futile—namely, “a) when the IJ 2 articulates an alternative and sufficient basis for her determination; b) when her 3 reliance on the erroneous aspect of her reasoning is substantially tangential to her 4 non erroneous findings; or c) when overwhelming evidence in the record makes 5 it clear that the same decision is inevitable on remand, or, in short, whenever the 6 reviewing panel is confident that the agency would reach the same result upon a 7 reconsideration cleansed of errors.” Li Hua Lin, 453 F.3d at 107. 8 In other words, under Chenery and Li Hua Lin, we cannot affirm simply 9 because we believe that the agency is likely to come out the same way, or because 10 we would—in our own judgment—come out that way. When the agency has 11 denied asylum and related relief on credibility grounds, we can (and we will) 12 affirm only if (a) the agency offered a clearly independent and sufficient ground 13 for its ruling, one that is not affected by any erroneous adverse credibility findings, 14 or (b) the evidentiary record includes statements that are so inconsistent that we 15 can be confident that the agency would not accept any kind of explanation. 16 In the instant case, we have doubts that—in the absence of legal error—the 17 agency would have reached the same conclusion. Accordingly, we need not decide 18 whether, under our precedents, the inconsistency concerning the dates of 19 Gurung’s assault and hospitalization would be sufficient to justify an adverse 20 credibility finding at all. Remanding to the BIA is clearly not futile. CONCLUSION 21 22 We GRANT Gurung’s petition for review, VACATE the BIA’s order of 23 removal, and REMAND the case to the agency for reconsideration consistent with 24 this opinion. 11
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