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Gurung v. Barr

United States Court of Appeals, Second Circuit

July 8, 2019

Jhok Bahadur Gurung, Petitioner,
v.
William P. Barr, United States Attorney General, Respondent.

          Submitted: May 31, 2019

          On Petition for Review from the Board of Immigration Appeals

         Jhok Bahadur Gurung challenges the denial of his application for asylum and related relief. The Immigration Judge denied relief solely on a finding that Gurung was not credible. That finding stemmed from three purported inconsistencies in Gurung's testimony regarding: (1) the dates when Gurung received medical treatment after he was assaulted in 2012 by members of the Maoist Party; (2) the details of his encounter with the police following this attack; and (3) the severity of his father's injuries after an assault in 2000. The Board of Immigration Appeals affirmed the Immigration Judge's ruling. On review, we conclude that the second and third asserted inconsistencies do not amount to inconsistent statements at all. As to the first inconsistency, we are doubtful that it would-on its own-justify an adverse credibility finding. But, in any event, we do not believe that remanding the case to the agency would be futile. We therefore GRANT Gurung's petition for review, VACATE the order of removal, and REMAND the case.

          Jhok Bahadur Gurung (pro se), in support of Petitioner.

          Scott M. Marconda, Jessica E. Burns (U.S. Department of Justice, Civil Division, Office of Immigration Litigation), Chad A. Readler (U.S. Department of Justice, Civil Division), in support of Respondent.

          Before: Calabresi and Lohier, Circuit Judges, and Donnelly, District Judge. [*]

          CALABRESI, CIRCUIT JUDGE

         Petitioner Jhok Bahadur Gurung is a native and citizen of Nepal. Gurung seeks relief from political persecution in the form of asylum, withholding of removal, and protection under the Convention Against Torture. Relying exclusively on three purported inconsistencies in Gurung's testimony, the Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) denied Gurung's petition on credibility grounds. Gurung sought review of that denial in federal court. A member of our Court, sitting on the non-argument calendar panel, determined that this case should be heard on our regular argument calendar. Having now reviewed Gurung's petition as part of that calendar, we remand the case to the BIA and take the opportunity to address two issues that the petition raises.

         First, what kinds of statements should be treated as "inconsistent" in making an adverse credibility finding? Simply because two statements are not identical does not mean that they are inconsistent. Given that an inconsistency finding places a heavy burden on the applicant, it is especially important for the IJ and the BIA to apply the correct standard. Hard as it is to explain away true inconsistencies, it is even harder to "justify" an inconsistency that does not exist.

         Second, what is the proper remedy when the IJ and the BIA have committed legal error, but some evidence exists that might be sufficient-on its own-to support the agency's findings? In those situations, the correct course is to remand the case to the BIA, unless doing so would be futile. The mere possibility that our Court may believe the remaining evidence would be sufficient to support the agency's conclusion cannot justify affirmance.

         In Gurung's case, the IJ and the BIA mistook two discrepancies in wording as inconsistencies. One possible inconsistency remains. Because we are not certain that the agency would have reached the same conclusion as to Gurung's credibility in the absence of the errors it made, we GRANT Gurung's petition for review, VACATE the order of removal, and REMAND the case to the Board of Immigration Appeals for further proceedings consistent with this opinion.

         FACTUALBACKGROUND

         Gurung entered the United States in 2012 on a B-1 temporary visa. After his visa expired, Gurung applied for asylum, withholding of removal, and Convention Against Torture relief. Gurung's application asserted that, if he returned to Nepal, members of the Maoist Party would persecute him because of his support for the National Democratic Party (NDP). Gurung's application contained, in relevant part, testimony that he was the victim of two politically motivated assaults before he escaped to the United States. A summary of Gurung's allegations follows.

         1.2000 ...


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