Sunuwar v. Attorney Gen. U.S.
| Decision Date | 25 February 2021 |
| Docket Number | No. 20-2091,20-2091 |
| Citation | 989 F.3d 239 |
| Parties | Ashish SUNUWAR, Petitioner v. ATTORNEY GENERAL UNITED STATES of America, Respondent |
| Court | U.S. Court of Appeals — Third Circuit |
Anser Ahmad, Ahmad & Associates, 6888 Elm Street, Suite 101, McLean, VA 22101, Counsel for Petitioner Ashish Sunuwar
Lindsay B. Glauner, Imran R. Zaidi, United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Counsel for Respondent Attorney General United States of America
Before: RESTREPO, BIBAS, and PORTER, Circuit Judges.
Ashish Sunuwar immigrated to the United States from Nepal in 2017. On the night of July 2, 2018, he beat and strangled his wife, Rima Sunuwar.1 Sunuwar was ultimately convicted of strangulation and contempt for violating a protection-from-abuse order. The Department of Homeland Security ("DHS") initiated removal proceedings.
Sunuwar contested the DHS's charges of removability and, as relief from removal, sought asylum, withholding of removal under the Immigration and Nationality Act ("INA"), and withholding and deferral of removal under the Convention Against Torture ("CAT"). Sunuwar did not prevail. The agency (1) determined that Sunuwar is deportable; (2) determined that he committed a particularly serious crime that disqualifies him from all forms of relief except deferral of removal under the CAT; and (3) denied him deferral of removal under the CAT based on an adverse credibility finding.
Sunuwar petitions for review, challenging these three aspects of the agency's decision. We conclude that there was no error in the deportability and particularly serious crime determinations, and that the agency's adverse credibility finding is supported by substantial evidence. So we will deny the petition.
In 2017, Sunuwar was admitted to the United States as a lawful permanent resident based on a diversity visa. On July 3, 2018, he was arrested and charged with first-degree aggravated assault, first-degree strangulation, and terroristic threats in the Court of Common Pleas of Dauphin County, Pennsylvania. The criminal complaint included an affidavit of probable cause prepared by Officer Blake Iorio, who was dispatched to the Sunuwar residence on the morning of the arrest.
According to the affidavit of probable cause, Officer Iorio observed that Rima had multiple injuries, including a "swollen and completely bloodshot" eye, "multiple large bruises on both her arms and knees," additional "bruising around her neck," and "scratch marks on her chin." A.R. 405. Rima told Officer Iorio that Sunuwar continually beat her throughout the night with his fists and a wooden stick. At one point, Sunuwar dragged Rima from the living room to the bedroom, pushed her up against a wall and started to choke her with his hands. He took Rima's cell phone and jammed it into her mouth, causing her to bleed. When Rima tried to scream, Sunuwar removed her shirt and shoved it down her throat. Sunuwar then dragged Rima into a closet and struck her head against a shelf until she lost consciousness. When she revived, he held a kitchen knife to her throat and vowed to kill her if she went to the police.
The day of Sunuwar's arrest, Rima filed a petition for emergency relief from abuse. She alleged that Sunuwar had beaten her repeatedly over the previous six weeks, including when she refused his sexual advances. The Dauphin County Night Court issued an order granting emergency protection from abuse that same day. The protection order required Sunuwar to, among other things, refrain from "abusing," "harassing," or "contacting" Rima. A.R. 437.
Sunuwar later pleaded guilty to contempt under 23 Pa. Cons. Stat. § 6114(a) for disobeying the protection order. The affidavit of probable cause in support of this charge stated that Sunuwar sent four letters to Rima from detention, including one written on the back of a notice served on Sunuwar stating the conditions of the order.
In May 2019, Sunuwar pleaded guilty to first-degree strangulation under 18 Pa. Cons. Stat. § 2718(a) for his attack on his wife. He was sentenced to a term of imprisonment of 11.5 to 23 months. Section 2718(a) prohibits "knowingly or intentionally imped[ing] the breathing or circulation of the blood of another person by: (1) applying pressure to the throat or neck; or (2) blocking the nose and mouth of the person." As relevant here, a strangulation offense is classified as a felony in the first degree if the defendant was under an active protection order at the time of the offense or used an instrument of crime in committing the offense. 18 Pa. Cons. Stat. § 2718(d)(3).
The DHS placed Sunuwar in removal proceedings. The DHS alleged that Sunuwar had been convicted of strangulation, and that a court determined that he violated part of an order involving protection against credible threats of violence, repeated harassment, or bodily injury to the person for whom the order was issued. Based on this conduct, the DHS charged Sunuwar with removability as an alien who was convicted of an aggravated felony, see 8 U.S.C. § 1227(a)(2)(A)(iii), a crime of domestic violence, see id. § 1227(a)(2)(E)(i), and a crime involving moral turpitude, see id. § 1227(a)(2)(A)(i), and as an alien who was found to have violated a protection order, see id. § 1227(a)(2)(E)(ii).
Sunuwar denied the removability charges. As relief from removal, he applied for asylum, withholding of removal under the INA, and CAT protection.2 He alleged in his application that, if he were deported, "[t]he Maoist party [in Nepal] would try to recruit [him] because they are at war with Nepal and if [he] did not join them [he] would be kidnapped, tortured or killed." A.R. 329. He did not allege that he had experienced any past harm in Nepal.
Sunuwar testified before an immigration judge ("IJ") in support of his application. At the outset of the hearing, he amended his application to change the answer from "no" to "yes" in response to whether he had previously been harmed or mistreated in Nepal, but still did not specifically identify or describe any past harm. Sunuwar testified that, when he was about thirteen or fourteen years old (which would have been around 2006 or 2007), he was kidnapped by Maoists and held for three days, during which time he was stabbed twice in the stomach. He further testified that the Maoists told him that Nepal was at war and that he was required to help them fight, but that he was thereafter able to escape from them.
The IJ asked Sunuwar why he did not mention his kidnapping in his asylum application. Sunuwar responded that he did not know. He also stated that he was not sure whether he told his prior counsel about the incident when his application was written.
Sunuwar testified that after he escaped from his kidnappers, he and his family fled their village and moved to Kathmandu, where Maoists threatened and extorted them. Sunuwar did not provide specifics as to how he was threatened and extorted in Kathmandu, nor did he describe any other incidents where he was harmed in Nepal. He also testified that he was afraid that people who lent him money for his travel to the United States would attack him upon his return.
Sunuwar was asked about his attack on his wife, Rima. He testified that Rima became angry after seeing him speaking with another woman on the phone. She attacked him, and he slapped her in the face twice. Sunuwar denied trying to force Rima to have sex with him.
Sunuwar told the IJ that he pleaded guilty to strangulation because his attorney told him that doing so would secure him an earlier release. He admitted that he sent Rima letters while in jail and claimed to have believed that the protection order would not be effective until he "g[o]t out of jail." A.R. 202.
Rima testified in support of her husband's application. She stated that Maoists twice kidnapped Sunuwar, once for "one and a half months," and another time for "15 to 16 days." A.R. 237. She denied many of the allegations in the affidavit of probable cause (which was based mainly on her statements to the police shortly after the incident), telling the IJ that Sunuwar slapped her, but did not choke or punch her. She further stated that Sunuwar did not put a knife to her throat, and suggested that the statement in the probable cause affidavit that Sunuwar did so was the result of a misinterpretation. Finally, Rima testified that she would face significant hardship if her husband were deported and pleaded with the IJ to forgive Sunuwar and give him a second chance.
The IJ found Sunuwar removable on all four charged grounds, including violation of a protection order under 8 U.S.C. § 1227(a)(2)(E)(ii). The IJ also denied his application for relief from removal.
The IJ determined that Sunuwar's conviction for strangulation was a particularly serious crime, rendering him ineligible for all forms of relief except deferral of removal under the CAT. The IJ considered the elements of the offense, the "rather significant period of incarceration," and the factual allegations contained in the affidavit of probable cause. A.R. 82. "Given the gravity of the offense," it was clear to the IJ that Sunuwar's conviction was for a particularly serious crime. A.R. 84.
Next, the IJ determined that neither Sunuwar nor his wife testified credibly. This finding was based on three inconsistencies. First, Sunuwar did not mention his alleged kidnapping in his written asylum application, even after he amended his application to note that he had suffered past harm. Second, Sunuwar and his wife offered starkly different testimony about his alleged mistreatment in Nepal. Lastly, Sunuwar and his wife offered very different accounts of Sunuwar's conduct on the night of July 2, 2018, in comparison with what is contained in the affidavit of probable cause.
After discounting Sunuwar's and Rima's testimony, the IJ...
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