Uddin-Nessa v. Sessions

16-2359 Uddin-Nessa v. Sessions BIA Schoppert, IJ A200 239 856 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 4th day of May, two thousand eighteen. [5] 6 PRESENT: 7 PIERRE N. LEVAL, 8 RICHARD C. WESLEY, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ [12] 13 AHMED SHAFIQ UDDIN-NESSA, AKA 14 MOHAMED SHAFIQ AHMED, 15 Petitioner, [16] 17 v. 16-2359 18 NAC 19 JEFFERSON B. SESSIONS, III, 20 UNITED STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ [23] 24 FOR PETITIONER: Gregory Marotta, Vernon, NJ. [25] 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; Anthony P. 28 Nicastro, Assistant Director; 29 Sheri R. Glaser, Trial Attorney, 30 Office of Immigration Litigation, 31 United States Department of 32 Justice, Washington, DC. 1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED that the petition for review 4 is DENIED. 5 Petitioner Ahmed Shafiq Uddin-Nessa, a native and citizen 6 of Bangladesh, seeks review of a June 17, 2016, decision of 7 the BIA affirming a February 25, 2015, decision of an 8 Immigration Judge (“IJ”) denying asylum, withholding of 9 removal, and relief under the Convention Against Torture 10 (“CAT”). In re Ahmed Shafiq Uddin-Nessa, No. A200 239 856 11 (B.I.A. June 17, 2016), aff’g No. A200 239 856 (Immig. Ct. 12 N.Y. City Feb. 25, 2015). We assume the parties’ familiarity 13 with the underlying facts and procedural history in this case. 14 Under the circumstances of this case, we have reviewed 15 both the IJ’s and the BIA’s opinions “for the sake of 16 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 17 F.3d 524, 528 (2d Cir. 2006). The applicable standards of 18 review are well established. 8 U.S.C. § 1252 (b)(4)(B); Xiu 19 Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). 20 “Considering the totality of the circumstances, and all 21 relevant factors, a trier of fact may base a credibility 22 determination on . . . the consistency between the [2] 1 applicant’s . . . written and oral statements . . . , the 2 internal consistency of each such statement, [and] the 3 consistency of such statements with other evidence of 4 record . . . without regard to whether an inconsistency, 5 inaccuracy, or falsehood goes to the heart of the 6 applicant’s claim.” 8 U.S.C. § 1158 (b)(1)(B)(iii); Xiu Xia 7 Lin, 534 F.3d at 163-64 . 8 Although the agency reasonably relied on Uddin-Nessa’s 9 inconsistent statements regarding whether he had been 10 arrested in Bangladesh and Panama to question his 11 credibility, see Xiu Xia Lin, 534 F.3d at 165-66 , it erred 12 when it declined to consider his cousin’s passport records 13 and his hospital records as corroborating evidence that he 14 offered to rehabilitate his credibility, see Biao Yang v. 15 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s 16 failure to corroborate his or her testimony may bear on 17 credibility, because the absence of corroboration in 18 general makes an applicant unable to rehabilitate testimony 19 that has already been called into question.”). 20 “[H]owever, not every minor error requires a remand. 21 Certainly if the IJ explicitly adopts an alternative and 22 sufficient basis for her determination, no remand is [3] 1 required.” Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 2 391, 401 (2d Cir. 2005). Thus, when an adverse credibility 3 determination results from “some agency findings infected 4 by legal error and others that are not, our decision to 5 uphold the agency decision or to remand for further 6 proceedings depends on how confidently we can predict that 7 the agency would reach the same decision absent the errors 8 that were made.” Shunfu Li v. Mukasey, 529 F.3d 141 , 150 9 (2d Cir. 2008) (internal quotation marks omitted). 10 In reaching an adverse credibility conclusion, the IJ 11 provided multiple reasons for finding Uddin-Nessa’s 12 testimony not credible; properly accounting for 13 corroborating evidence would not have changed the 14 conclusion that Uddin-Nessa was not credible. Although the 15 passport records tended to place his cousin in Bangladesh 16 at the time of Uddin-Nessa’s arrest, the IJ also emphasized 17 her testimony was entitled to diminished weight because she 18 was an interested witness and her testimony only sought to 19 corroborate Uddin-Nessa’s inconsistent statements. 20 Certified Administrative Record (CAR) at 41–42. 21 Additionally, even if the IJ erred in failing to 22 explain why it did not consider Uddin-Nessa’s hospital [4] 1 records to rehabilitate his credibility, the records would 2 be insufficient to overcome the numerous omissions and 3 implausible statements in his own testimony. The IJ based 4 its credibility determination on substantial and damning 5 inconsistencies, including most notably Uddin-Nessa’s 6 failure to reveal to U.S. authorities his fourteen-month 7 detention in Panama or his arrest in Bangladesh in 2008. 8 CAR at 39–40. The IJ found his explanation for those 9 omissions to be unpersuasive. The IJ also found Uddin- 10 Nessa not credible based on the inconsistencies between his 11 testimony in his removal hearing, asylum application, and 12 credible fear interview with DHS. 13 Because the hospital records alone would be insufficient to 14 rehabilitate Uddin-Nessa’s credibility, we can confidently 15 predict that remand would be futile. 16 For the foregoing reasons, the petition for review is 17 DENIED and the BIA’s order is AFFIRMED. As we have 18 completed our review, any stay of removal that the Court 19 previously granted in this petition is VACATED, and any 20 pending motion for a stay of removal in this petition is 21 DISMISSED as moot. Any pending request for oral argument 22 in this petition is DENIED in accordance with Federal Rule [5] 1 of Appellate Procedure 34(a)(2), and Second Circuit Local 2 Rule 34.1(b). 3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk