16‐3883‐ag Gurung v. Barr 1 IN THE 2 United States Court of Appeals 3 For the Second Circuit 4 ________ 5 AUGUST TERM, 2018 6 7 SUBMITTED: MAY 31, 2019 8 DECIDED: JULY 8, 2019 9 10 No. 16‐3883‐ag 11 12 JHOK BAHADUR GURUNG, 13 Petitioner, 14 15 v. 16 17 WILLIAM P. BARR, United States Attorney General, 18 Respondent. 19 20 ________ 21 22 On Petition for Review from the 23 Board of Immigration Appeals 24 25 ________ 26 27 28 Before: CALABRESI and LOHIER, Circuit Judges, and DONNELLY, District Judge. 29 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 ...
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