Hossain v. Sessions

16-4215 Hossain v. Sessions BIA Poczter, IJ A206 263 723 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 23rd day of April, two thousand eighteen. [5] 6 PRESENT: 7 JOSÉ A. CABRANES, 8 DEBRA ANN LIVINGSTON, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ [12] 13 MD ARIF HOSSAIN, 14 Petitioner, [15] 16 v. 16-4215 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ [22] 23 FOR PETITIONER: Md Arif Hossain, Pro Se, 24 Brooklyn, NY. [25] 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; Terri J. 28 Scadron, Assistant Director; 29 Lisa Morinelli, Trial Attorney, 1 Office of Immigration Litigation, 2 United States Department of 3 Justice, Washington, DC. [4] 5 UPON DUE CONSIDERATION of this petition for review of a 6 Board of Immigration Appeals (“BIA”) decision, it is hereby 7 ORDERED, ADJUDGED, AND DECREED that the petition for review 8 is DENIED. 9 Petitioner Md Arif Hossain, a native and citizen of 10 Bangladesh, seeks review of a November 25, 2016, decision of 11 the BIA affirming a March 10, 2016, decision of an Immigration 12 Judge (“IJ”) denying Hossain’s application for asylum, 13 withholding of removal, and relief under the Convention 14 Against Torture (“CAT”). In re Md Arif Hossain, No. 15 A 206 263 723 (B.I.A. Nov. 25, 2016), aff’g No. A 206 263 723 16 (Immig. Ct. N.Y. City Mar. 10, 2016). We assume the parties’ 17 familiarity with the underlying facts and procedural history 18 in this case. 19 We have reviewed both the IJ’s and BIA’s decisions. Yun- 20 Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The 21 applicable standards of review are well established. See [22] 8 U.S.C. § 1252 (b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 23 162, 165-66 (2d Cir. 2008) (reviewing adverse credibility [2] 1 determination for substantial evidence). 2 “Considering the totality of the circumstances,” the 3 agency may base a credibility finding on the applicant’s 4 “demeanor, candor, or responsiveness,” and inconsistencies or 5 omissions in the applicant’s statements or between his 6 statements and other evidence. 8 U.S.C. 7 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64 , 166- 8 67. “We defer . . . to an IJ’s credibility determination 9 unless, from the totality of the circumstances, it is plain 10 that no reasonable fact-finder could make such an adverse 11 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167 . As 12 discussed below, substantial evidence supports the adverse 13 credibility determination. 14 The agency reasonably relied on multiple inconsistencies 15 in Hossain’s testimony relating to his involvement with the 16 Bangladesh Nationalist Party (“BNP”) and his descriptions of 17 his past harm. See 8 U.S.C. § 1158 (b)(1)(B)(iii). For 18 example, Hossain was unable to identify the name of the BNP’s 19 president despite submitting a letter from that individual in 20 support of his claim. And both that letter and his father’s 21 letter were inconsistent with Hossain’s testimony regarding [3] 1 the timeline of his involvement in the BNP. The IJ was not 2 required to accept Hossain’s explanation regarding the 3 president’s letter—that he meant the time when he had a good 4 working relationship with the president—because it did not 5 explain the different dates or why Hossain did not recognize 6 the president’s name. See Majidi v. Gonzales, 430 F.3d 77 , 7 80 (2d Cir. 2005) (“A petitioner must do more than offer a 8 plausible explanation for his inconsistent statements to 9 secure relief; he must demonstrate that a reasonable fact- 10 finder would be compelled to credit his testimony.” (emphasis 11 in original; quotation marks omitted)). 12 In addition, there were several inconsistencies between 13 Hossain’s testimony and the documentary evidence regarding 14 the two assaults Hossain allegedly suffered at the hands of 15 members of the Awami League. The inconsistencies related to 16 the location of the 2009 assault, the severity of Hossain’s 17 injuries, who reported the 2009 incident to authorities, and 18 where Hossain recovered from the 2012 assault. These 19 inconsistencies alone provide substantial evidence for the 20 adverse credibility determination because they relate to the 21 two main incidents of persecution. See Xian Tuan Ye v. Dep’t [4] 1 of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006). 2 The adverse credibility determination is bolstered by 3 the IJ’s finding that Hossain paused numerous times when asked 4 to explain inconsistencies. “We give particular deference 5 to” a finding based on demeanor, particularly when such a 6 finding “is supported by specific examples of inconsistent 7 testimony.” Li Hua Lin v. U.S Dep’t of Justice, 453 F.3d 99 , 8 109 (2d Cir. 2006) (internal quotation marks and brackets 9 omitted). Finally, the IJ reasonably found that Hossain 10 failed to rehabilitate his testimony with reliable 11 corroborating evidence. See Biao Yang v. Gonzales, 496 F.3d 12 268, 273 (2d Cir. 2007) (“An applicant’s failure to corroborate 13 . . . testimony may bear on credibility, because the absence 14 of corroboration in general makes an applicant unable to 15 rehabilitate testimony that has already been called into 16 question.”). The IJ reasonably found that Hossain’s evidence 17 was insufficient to rehabilitate his testimony because, in 18 addition to the inconsistencies between the documents and 19 Hossain’s statements, the documents were prepared for the 20 purpose of litigation by parties not subject to cross 21 examination, they relied solely on Hossain’s testimony for [5] 1 authentication, and at least one of the drafters, Hossain’s 2 father, was an interested party. See Y.C. v. Holder, 741 3 F.3d 324, 332, 334 (2d Cir. 2013) (holding that “[w]e defer 4 to the agency’s determination of the weight afforded to an 5 alien’s documentary evidence” and deferring to decision to 6 give limited weight to an unsworn letter from applicant’s 7 spouse). 8 Given the multiple inconsistencies, the demeanor 9 finding, and the lack of reliable corroboration, substantial 10 evidence supports the adverse credibility determination. See [11] 8 U.S.C. § 1158 (b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 165 - 12 66. The adverse credibility determination is dispositive of 13 asylum, withholding of removal, and CAT relief because all 14 three claims rely on the same factual predicate. See Paul 15 v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). 16 For the foregoing reasons, the petition for review is 17 DENIED. As we have completed our review, any stay of removal 18 that the Court previously granted in this petition is VACATED, 19 and any pending motion for a stay of removal in this petition 20 is DISMISSED as moot. Any pending request for oral argument 21 in this petition is DENIED in accordance with Federal Rule of [6] 1 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 2 34.1(b). 3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk of Court