Rahman v. Sessions

17-369 Rahman v. Sessions BIA Christensen, IJ A206 233 967 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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 8th day of May, two thousand eighteen. [5] 6 PRESENT: 7 ROBERT A. KATZMANN, 8 Chief Judge, 9 RICHARD C. WESLEY, 10 DENNY CHIN, 11 Circuit Judges. 12 _____________________________________ [13] 14 MASUDER RAHMAN, 15 Petitioner, [16] 17 v. 17-369 18 NAC 19 JEFFERSON B. SESSIONS III, 20 UNITED STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ [23] 24 FOR PETITIONER: Indra Pal, Brooklyn, NY. [25] 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; Nancy Friedman, 28 Senior Litigation Counsel; 29 Virginia Lum, Attorney, Office of 1 Immigration Litigation, United 2 States Department of Justice, 3 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 Masuder Rahman, a native and citizen of 10 Bangladesh, seeks review of a January 10, 2017, decision of 11 the BIA affirming a February 23, 2016, decision of an 12 Immigration Judge (“IJ”) denying Rahman’s application for 13 asylum, withholding of removal, and relief under the 14 Convention Against Torture (“CAT”). In re Masuder Rahman, 15 No. A 206 233 967 (B.I.A. Jan. 10, 2017), aff’g No. A 206 233 16 967 (Immig. Ct. N.Y. City Feb. 23, 2016). We assume the 17 parties’ familiarity with the underlying facts and procedural 18 history in this case. 19 We review the decisions of both the BIA and the IJ. See 20 Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). 21 The 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). “Considering the totality of the [2] 1 circumstances, . . . a trier of fact may base a credibility 2 determination on the demeanor, candor, or responsiveness of 3 the applicant . . . , the consistency between the applicant’s 4 or witness’s written and oral statements . . . , the internal 5 consistency of each such statement, the consistency of such 6 statements with other evidence of record . . . , and any 7 inaccuracies or falsehoods in such statements, . . . or any 8 other relevant factor.” 8 U.S.C. § 1158 (b)(1)(B)(iii); see 9 also Xiu Xia Lin, 534 F.3d at 163-64 . “We defer . . . to an 10 IJ’s credibility determination unless . . . it is plain that 11 no reasonable fact-finder could make such an adverse 12 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167 . 13 Substantial evidence supports the agency’s determination that 14 Rahman was not credible. 15 The agency reasonably relied on discrepancies among 16 Rahman’s testimony, his application, and his wife’s affidavit 17 regarding the three instances when Awami League (“AL”) 18 members allegedly attacked him. See 8 U.S.C. 19 § 1158(b)(1)(B)(iii). Although Rahman testified that he was 20 rendered unconscious during all three attacks, his 21 application and his wife’s letter, which described all three [3] 1 attacks, reported Rahman as unconscious only after the third 2 attack. See Xiu Xia Lin, 534 F.3d at 166 -67 & n.3 (describing 3 omissions as inconsistencies in terms of credibility and 4 upholding agency’s reliance on omissions from supporting 5 letters); Ming Zhang v. Holder, 585 F.3d 715, 726 (2d Cir. 6 2009) (“Omissions that go to a heart of an applicant’s claim 7 can form the basis for an adverse credibility determination.” 8 (brackets omitted) (quoting Cheng Tong Wang v. Gonzales, 449 9 F.3d 451, 453 (2d Cir. 2006))). Moreover, as the agency 10 found, Rahman introduced additional inconsistency by 11 testifying that AL members dragged him out of a shop and beat 12 him in the street, whereas his asylum application reported 13 that he was beaten in the shop because he refused his 14 attackers’ order to leave. See Ramsameachire v. Ashcroft, [15] 357 F.3d 169, 181 (2d Cir. 2004) (upholding agency’s reliance 16 on differing descriptions of harm). 17 These inconsistencies constitute substantial evidence 18 for the adverse credibility determination because they 19 undermined Rahman’s credibility as to the alleged incidents 20 of persecution. See Xian Tuan Ye v. Dep’t of Homeland Sec., [21] 446 F.3d 289, 295 (2d Cir. 2006) (holding that material [4] 1 inconsistency relating to central aspect of asylum claim 2 provided substantial evidence for adverse credibility 3 determination). The IJ was not required to accept Rahman’s 4 explanations or credit his documentary evidence because 5 neither resolved the discrepancies. See Majidi v. Gonzales, [6] 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more 7 than offer a plausible explanation for his inconsistent 8 statements to secure relief; he must demonstrate that a 9 reasonable fact-finder would be compelled to credit his 10 testimony.” (quotation marks omitted)); Biao Yang v. 11 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s 12 failure to corroborate his or her testimony may bear on 13 credibility, because the absence of corroboration in general 14 makes an applicant unable to rehabilitate testimony that has 15 already been called into question.”). Although Rahman states 16 that he felt rushed and became confused while testifying, the 17 record shows that he received a full and fair opportunity to 18 present his claim. See Li Hua Lin v. U.S. Dep’t of Justice, [19] 453 F.3d 99, 104-05 (2d Cir. 2006) (discussing argument that 20 credibility ruling amounted to due process violation). 21 Given the inconsistencies and omissions relating to the [5] 1 three alleged incidents of persecution and the lack of 2 corroboration to resolve the discrepancies, the totality of 3 the circumstances supports the agency’s adverse credibility 4 determination. See 8 U.S.C. § 1158 (b)(1)(B)(iii); Xiu Xia 5 Lin, 534 F.3d at 166-67 . The adverse credibility 6 determination is dispositive of asylum, withholding of 7 removal, and CAT relief because all three claims rely on 8 Rahman’s credibility. See Paul v. Gonzales, 444 F.3d 148 , 9 156-57 (2d Cir. 2006). 10 For the foregoing reasons, the petition for review is 11 DENIED. 12 FOR THE COURT: 13 Catherine O’Hagan Wolfe, Clerk of Court