JAMYANG GURUNG, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent, 547 F. App'x 51

SUMMARY ORDER Jamyang Gurung, a native and citizen of Nepal, seeks review of an October 22, 2012, decision of the BIA affirming the October 15, 2010, decision of Immigration Judge (“IJ”) Sandy K. Horn, which pretermitted his application for asylum and denied his application for withholding of removal and relief under the Convention Against Torture (“CAT”). In re Jamyang Gurung, No. [ AXXX XXX XXX ] (B.I.A. Oct. 22, 2012), aff'g No. [ AXXX XXX XXX ] (Immig. Ct. N.Y. City Oct. 15, 2010). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

Because the BIA’s primary basis for denying withholding of removal was the IJ’s adverse credibility determination, though the IJ did not entirely reject Gurung’s testimony and denied relief only after making an additional burden finding, we have reviewed the decision of the IJ as modified and supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). The applicable standards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.2009).

As an initial matter, we lack jurisdiction to review the pretermission of Gurung’s asylum application because his assertion that the agency erred in finding that he established neither changed nor extraordinary circumstances does not raise a reviewable constitutional claim or question of law. See 8 U.S.C. § 1252(a)(2)(C), (D). Moreover, Gurung failed to exhaust CAT relief, see Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir.2006), so we consider only withholding of removal.

For applications such as Gurung’s, governed by the amendments made to the Immigration and Nationality Act by the REAL ID Act of 2005, the agency may, considering the totality of the circumstances, base a credibility finding on the applicant’s “demeanor, candor, or responsiveness,” the plausibility of her account, and inconsistencies in her statements, without regard to whether they go “to the heart of the applicant’s claim.” See 8 U.S.C. § 1231(b)(3)(C); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008).

We will “defer to an IJ’s credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make” such a ruling. Xiu Xia Lin, 534 F.3d at 167. The agency’s adverse credibility determination here is not supported by substantial evidence. The IJ based his adverse credibility determination on the following inconsistencies between Gurung’s testimony and asylum application:

(1) Gurung’s testimony that Maoists visited him in 2002 and 2003 and attacked him in August 2004, though his application states that he was visited in March 2004 and attacked in July 2004; (2) his testimony that he was attacked by four or five men who he believed had a sharp object or gun and hit him with a riding crop, though his application states that there were six men who brandished a chain knife and rope and hit him with a long stick; and (3) his testimony that he was only bruised on his shoulders by the stick, though his application states he was hit in the face with the stick causing a nose bleed.

Gurung testified tentatively as to the types of weapons carried by his assailants, stating twice that it was dark, that the men were in a large group, and that he was hit only with the long stick. However, the IJ did not consider these explanations in determining whether it accounted for Gurung’s confusion as to the number of men and types of weapons. This failure constitutes error. See Beskovic v. Gonzales, 467 F.3d 223, 227 (2d Cir.2006) (requiring a certain minimal level of analysis from agency decisions denying relief from removal to enable meaningful judicial review).

Further, both the IJ and the BIA mischaracterize the weapon used to hit Gurung. Although Gurung consistently described the weapon as a long stick in his testimony and application, the IJ described the weapon as a “riding crop” and the BIA misstated Gurung’s application as indicating that he was hit with the chain knife. Based on this misstatement, the BIA erroneously found an inconsistency with Gurung’s testimony that he was hit with a stick. The BIA also incorrectly stated that Gurung testified that he was traveling to Pokhara when stopped by the Maoists.

To the contrary, Gurung did not testify to his original destination. Rather, both his testimony and application indicate that he escaped to a neighboring village after the attack and, from there, went to Pokhara. Excluding consideration of these flawed findings, the IJ’s adverse credibility determination rested only on the date discrepancies, which the IJ found were not fatal to Gurung’s claim, and the inconsistencies regarding the injuries Gurung sustained.

Because these two inconsistencies do not constitute substantial evidence supporting the adverse credibility determination, the agency erred in denying withholding of removal on that basis. See 8 U.S.C. § 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d at 167. The BIA alternatively denied withholding based on Gurung’s failure to establish that he was targeted based on a statutorily protected ground. Withholding eligibility requires that the persecution an applicant suffered or fears be on account of his race, religion, nationality, political opinion, or particular social group. 8 U.S.C. § 1231(b)(3)(A).

Here, the agency considered only whether Gurung established his membership in a particular social group and not whether he was targeted based on his political opinion due to his Nepali Congress Party activities, despite his testimony and arguments on appeal that he was attacked because he did not quit the party. Because the agency’s alternative basis for denying withholding is also erroneous for failing to address Gurung’s argument, see Beskovic, 467 F.3d at 227, there is a realistic possibility that, absent the errors in the adverse credibility determination, the agency would have reached a different conclusion.

Remand for reconsideration of Gurung’s application for withholding of removal is therefore not futile. See Alam v. Gonzales, 438 F.3d 184, 187-88 (2d Cir.2006). For the foregoing reasons, the petition for review is GRANTED in part, with regard to withholding of removal, and DENIED to the extent it challenges the denial of asylum and CAT relief. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot.

Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).