Khorshe Alam v. Garland

21-6041 Khorshe Alam v. Garland BIA Thompson, IJ A208 896 231 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 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 16th day of March, two thousand twenty5 three. [6] 7 PRESENT: 8 ROBERT D. SACK, 9 RAYMOND J. LOHIER, JR., 10 WILLIAM J. NARDINI, 11 Circuit Judges. 12 _____________________________________ [13] 14 MOHAMMAD KHORSHE ALAM, 15 Petitioner, [16] 17 v. 21-6041 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ [23] 24 FOR PETITIONER: Thomas V. Massucci, New York, NY. [25] 26 FOR RESPONDENT: Brian M. Boynton, Acting Assistant 27 Attorney General; Linda S. 28 Wernery, Assistant Director; Sarah 1 Byrd, Trial Attorney, Office of 2 Immigration Litigation, United 3 States Department of Justice, 4 Washington, DC. 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 GRANTED. 9 Petitioner Mohammad Khorshe Alam, a native and citizen 10 of Bangladesh, seeks review of a January 15, 2021 decision of 11 the BIA affirming an October 15, 2018 decision of an 12 Immigration Judge (“IJ”) denying his application for asylum, 13 withholding of removal, and relief under the Convention 14 Against Torture (“CAT”). In re Mohammad Khorshe Alam, No. 15 A208 896 231 (B.I.A. Jan. 15, 2021), aff’g No. A 208 896 231 16 (Immig. Ct. N.Y. City Oct. 15, 2018). We assume the parties’ 17 familiarity with the underlying facts and procedural history. 18 We have considered both the IJ’s and the BIA’s opinions. 19 See Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524 , 528 20 (2d Cir. 2006). We review an adverse credibility 21 determination “under the substantial evidence standard,” Hong 22 Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018), and 23 “administrative findings of fact are conclusive unless any [2] 1 reasonable adjudicator would be compelled to conclude to the 2 contrary,” 8 U.S.C. § 1252 (b)(4)(B). “Considering the 3 totality of the circumstances, and all relevant factors, a 4 trier of fact may base a credibility determination on . . . 5 the inherent plausibility of the applicant’s or witness’s 6 account, the consistency between the applicant’s or witness’s 7 written and oral statements . . . the consistency of such 8 statements with other evidence of record . . . , and any 9 inaccuracies or falsehoods in such statements, without regard 10 to whether an inconsistency, inaccuracy, or falsehood goes to 11 the heart of the applicant’s claim, or any other relevant 12 factor.” Id. § 1158(b)(1)(B)(iii). The agency found Khorshe 13 Alam’s testimony consistent as to his beating and the burning 14 of his store by members of the Awami League, but determined 15 that his claim was not credible because he submitted two 16 identical affidavits from two different members of the 17 Bangladesh National Party. We cannot conclude that this 18 finding constitutes substantial evidence under the “totality 19 of the circumstances.” 8 U.S.C. § 1158 (b)(1)(B)(iii). 20 “When an asylum applicant himself has submitted two or 21 more affidavits in support of his application that, he says, [3] 1 have been provided by different persons, but which are 2 strikingly similar in their structure or language, our 3 [C]ourt has allowed an [IJ] to treat those similarities as 4 evidence supporting an adverse credibility finding.” Mei 5 Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 519 (2d Cir. 6 2007). We have previously upheld an adverse credibility 7 determination based on “nearly identical language in the 8 written affidavits allegedly provided by different people” 9 where the IJ further identified inconsistencies, omissions, 10 vague testimony, and a lack of specific corroboration. Singh 11 v. BIA, 438 F.3d 145, 148 (2d Cir. 2006). 12 Here, the agency failed to consider the totality of the 13 circumstances. Neither the BIA’s nor the IJ’s decisions 14 discuss Khorshe Alam’s other documentary evidence, which 15 included country conditions evidence and additional 16 affidavits from Khorshe Alam’s mother, sister-in-law, 17 brother, cousins, sister, aunt, other shopkeepers, and a 18 medical doctor. “[U]nder the substantial evidence standard,” 19 the adverse credibility determination must “be supported by 20 reasonable, substantial and probative evidence in the record 21 when considered as a whole.” Hong Fei Gao, 891 F.3d at 76 [4] 1 (quotation marks omitted). 2 Furthermore, the agency’s conclusion that the affidavits 3 were fabricated is itself not supported by substantial 4 evidence. To begin, the affidavits were notarized by the 5 same person on the same day in Bangladesh, indicating that 6 they were prepared together or at the same time. Indeed, 7 Khorshe Alam testified that his father obtained the 8 affidavits for him and that though the affiants may have 9 copied each other, they had witnessed the same event and the 10 information in the affidavits was true. See Mei Chai Ye, 489 11 F.3d at 524 (acknowledging that similar language in 12 affidavits could be owed to affiants “relat[ing] their 13 stories to the same scrivener”). The record similarly does 14 not support the IJ’s conclusion that the affidavits were 15 fabricated because they were mailed from Dubai rather than 16 Bangladesh. The IJ relied on a DHL mailing label that listed 17 the address of the sender as “Mohammad Liton Patwary, 18 Bangladesh, CO First Flight Courier LLC Dubai VL.” But 19 Khorshe Alam testified that the sender was his cousin who 20 lived in Bangladesh, not Dubai, that the documents were sent 21 through DHL, and that he did not know why Dubai was mentioned. [5] 1 While the label lists a sender in Bangladesh and a courier 2 company seemingly based in Dubai, there is nothing on the 3 label to establish that the documents were turned over to the 4 courier company for mailing in Dubai rather than in 5 Bangladesh. 6 For the foregoing reasons, the petition for review is 7 GRANTED, the BIA’s decision is VACATED, and the case is 8 REMANDED for further proceedings consistent with this ORDER. 9 All pending motions and applications are DENIED and stays 10 VACATED. 11 FOR THE COURT: 12 Catherine O’Hagan Wolfe, 13 Clerk of Court