Submitted: May 31, 2019
Petition for Review from the Board of Immigration Appeals
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
Bahadur Gurung (pro se), in support of Petitioner.
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
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
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.
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.
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.
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.