17-2830 Ahmed v. Barr BIA Poczter, IJ A099 396 158
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 24th day of July, two thousand nineteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 RAYMOND J. LOHIER, JR., 9 RICHARD J. SULLIVAN, 10 Circuit Judges. 11 _____________________________________ 12 13 MUNIR AHMED, 14 Petitioner, 15 16 v. 17-2830 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Richard W. Chen, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Nancy Friedman, 27 Senior Litigation Counsel; Kevin 28 J. Conway, Trial Attorney, Office 29 of Immigration Litigation, United 30 States Department of Justice, 31 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 Munir Ahmed, a native and citizen of Pakistan,
6 seeks review of an August 18, 2017, decision of the BIA
7 affirming a November 28, 2016, decision of an Immigration
8 Judge (“IJ”) denying asylum, withholding of removal, and
9 relief under the Convention Against Torture (“CAT”). In re
10 Munir Ahmed, No. A099 396 158 (B.I.A. Aug. 18, 2017), aff’g
11 No. A099 396 158 (Immig. Ct. N.Y. City Nov. 28, 2016). We
12 assume the parties’ familiarity with the underlying facts and
13 procedural history in this case.
14 Under the circumstances of this case, we have considered
15 both the IJ’s and the BIA’s decisions. See Wangchuck v.
16 Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We
17 review the agency’s adverse credibility determination for
18 substantial evidence. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei
19 Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). “Considering
20 the totality of the circumstances, and all relevant factors,
21 a trier of fact may base a credibility determination on ...
22 the consistency between the applicant’s . . . written and
2 1 oral statements . . . , the internal consistency of each such
2 statement, [and] the consistency of such statements with
3 other evidence of record . . . without regard to whether an
4 inconsistency, inaccuracy, or falsehood goes to the heart of
5 the applicant’s claim, or any other relevant factor.”
6 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
7 credibility determination unless, from the totality of the
8 circumstances, it is plain that no reasonable fact-finder
9 could make such an adverse credibility ruling.” Xiu Xia Lin
10 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei
11 Gao, 891 F.3d at 76. The adverse credibility determination
12 is supported by substantial evidence.
13 Ahmed asserted that in 2011, the terrorist group Lashkar-
14 e-Taiba stalked, threatened, and beat him, and later fired
15 guns at his house, all because they overheard him praising
16 the United States. The agency reasonably relied on
17 inconsistencies between Ahmed’s testimony and his documentary
18 evidence concerning what weapons his attackers were carrying
19 when they beat him and when his wife and children left
20 Pakistan. See 8 U.S.C. § 1158(b)(1)(B)(iii). As the agency
21 found, Ahmed testified that he was attacked with a knife and
22 saw no other weapons, but he submitted a police report that
3 1 listed himself as the “applicant” or “informant” and
2 reflected that he told the police that he saw men approach
3 his home “armed with fire weapons.” And he testified that
4 his wife and Children left Pakistan in August 2012, but he
5 could not explain why his wife’s statement in support of his
6 application was attested to in Pakistan the next month. The
7 agency was not required to accept Ahmed’s explanations that
8 the police report may have reflected a statement his brother
9 made or that he may have forgotten when his wife and children
10 left Pakistan. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d
11 Cir. 2005) (“A petitioner must do more than offer a plausible
12 explanation for his inconsistent statements to secure relief;
13 he must demonstrate that a reasonable fact-finder would be
14 compelled to credit his testimony.” (internal quotation marks
15 omitted)).
16 The agency also reasonably relied on the fact that
17 Ahmed’s application omitted his allegation that Lashkar-e-
18 Taiba members followed his daughter after he left Pakistan.
19 See Ming Zhang v. Holder, 585 F.3d 715, 726 (2d Cir. 2009)
20 (holding that the agency may “draw an adverse inference about
21 petitioner’s credibility based, inter alia, on h[is] failure
22 to mention” important details or events in prior statements).
4 1 Although we have cautioned the agency about relying too
2 heavily on minor omissions, we find no error here because the
3 information concerned the only evidence of an ongoing threat
4 to Ahmed and his family by Lashkar-e-Taiba and the agency did
5 not err in considering it in combination with the other
6 inconsistencies. See Hong Fei Gao, 891 F.3d at 78, 82
7 (holding that “probative value of a witness’s prior silence
8 on particular facts depends on whether those facts are ones
9 the witness would reasonably have been expected to disclose”
10 and that “[o]missions need not go to the heart of a claim to
11 be considered in adverse credibility determinations, but they
12 must still be weighed in light of the totality of the
13 circumstances and in the context of the record as a whole”).
14 Further, the agency did not err in finding the Ahmed’s
15 credibility as a whole was undermined by his filing of a false
16 application for amnesty in 2006 and using that false
17 application to obtain advance parole to visit Pakistan in
18 2011. Cf. Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.
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17-2830 Ahmed v. Barr BIA Poczter, IJ A099 396 158
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 24th day of July, two thousand nineteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 RAYMOND J. LOHIER, JR., 9 RICHARD J. SULLIVAN, 10 Circuit Judges. 11 _____________________________________ 12 13 MUNIR AHMED, 14 Petitioner, 15 16 v. 17-2830 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Richard W. Chen, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Nancy Friedman, 27 Senior Litigation Counsel; Kevin 28 J. Conway, Trial Attorney, Office 29 of Immigration Litigation, United 30 States Department of Justice, 31 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 Munir Ahmed, a native and citizen of Pakistan,
6 seeks review of an August 18, 2017, decision of the BIA
7 affirming a November 28, 2016, decision of an Immigration
8 Judge (“IJ”) denying asylum, withholding of removal, and
9 relief under the Convention Against Torture (“CAT”). In re
10 Munir Ahmed, No. A099 396 158 (B.I.A. Aug. 18, 2017), aff’g
11 No. A099 396 158 (Immig. Ct. N.Y. City Nov. 28, 2016). We
12 assume the parties’ familiarity with the underlying facts and
13 procedural history in this case.
14 Under the circumstances of this case, we have considered
15 both the IJ’s and the BIA’s decisions. See Wangchuck v.
16 Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We
17 review the agency’s adverse credibility determination for
18 substantial evidence. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei
19 Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). “Considering
20 the totality of the circumstances, and all relevant factors,
21 a trier of fact may base a credibility determination on ...
22 the consistency between the applicant’s . . . written and
2 1 oral statements . . . , the internal consistency of each such
2 statement, [and] the consistency of such statements with
3 other evidence of record . . . without regard to whether an
4 inconsistency, inaccuracy, or falsehood goes to the heart of
5 the applicant’s claim, or any other relevant factor.”
6 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
7 credibility determination unless, from the totality of the
8 circumstances, it is plain that no reasonable fact-finder
9 could make such an adverse credibility ruling.” Xiu Xia Lin
10 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei
11 Gao, 891 F.3d at 76. The adverse credibility determination
12 is supported by substantial evidence.
13 Ahmed asserted that in 2011, the terrorist group Lashkar-
14 e-Taiba stalked, threatened, and beat him, and later fired
15 guns at his house, all because they overheard him praising
16 the United States. The agency reasonably relied on
17 inconsistencies between Ahmed’s testimony and his documentary
18 evidence concerning what weapons his attackers were carrying
19 when they beat him and when his wife and children left
20 Pakistan. See 8 U.S.C. § 1158(b)(1)(B)(iii). As the agency
21 found, Ahmed testified that he was attacked with a knife and
22 saw no other weapons, but he submitted a police report that
3 1 listed himself as the “applicant” or “informant” and
2 reflected that he told the police that he saw men approach
3 his home “armed with fire weapons.” And he testified that
4 his wife and Children left Pakistan in August 2012, but he
5 could not explain why his wife’s statement in support of his
6 application was attested to in Pakistan the next month. The
7 agency was not required to accept Ahmed’s explanations that
8 the police report may have reflected a statement his brother
9 made or that he may have forgotten when his wife and children
10 left Pakistan. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d
11 Cir. 2005) (“A petitioner must do more than offer a plausible
12 explanation for his inconsistent statements to secure relief;
13 he must demonstrate that a reasonable fact-finder would be
14 compelled to credit his testimony.” (internal quotation marks
15 omitted)).
16 The agency also reasonably relied on the fact that
17 Ahmed’s application omitted his allegation that Lashkar-e-
18 Taiba members followed his daughter after he left Pakistan.
19 See Ming Zhang v. Holder, 585 F.3d 715, 726 (2d Cir. 2009)
20 (holding that the agency may “draw an adverse inference about
21 petitioner’s credibility based, inter alia, on h[is] failure
22 to mention” important details or events in prior statements).
4 1 Although we have cautioned the agency about relying too
2 heavily on minor omissions, we find no error here because the
3 information concerned the only evidence of an ongoing threat
4 to Ahmed and his family by Lashkar-e-Taiba and the agency did
5 not err in considering it in combination with the other
6 inconsistencies. See Hong Fei Gao, 891 F.3d at 78, 82
7 (holding that “probative value of a witness’s prior silence
8 on particular facts depends on whether those facts are ones
9 the witness would reasonably have been expected to disclose”
10 and that “[o]missions need not go to the heart of a claim to
11 be considered in adverse credibility determinations, but they
12 must still be weighed in light of the totality of the
13 circumstances and in the context of the record as a whole”).
14 Further, the agency did not err in finding the Ahmed’s
15 credibility as a whole was undermined by his filing of a false
16 application for amnesty in 2006 and using that false
17 application to obtain advance parole to visit Pakistan in
18 2011. Cf. Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.
19 2007) (“[A] finding of fraudulent evidence redounds upon all
20 evidence the probative force of which relies in any part on
21 the credibility of the petitioner.”). Although false
22 statements may be excused if they are made to escape
5 1 persecution, Ahmed did not allege that he was in danger in
2 Pakistan at the time of the amnesty application. See Rui
3 Ying Lin v. Gonzales, 445 F.3d 127, 133 (2d Cir. 2006)
4 (“distinguish[ing] . . . between the presentation of a
5 fraudulent document in immigration court in support of an
6 asylum application and the use of a fraudulent document to
7 escape immediate danger or imminent persecution”—the latter
8 category being an unreasonable basis to doubt the applicant’s
9 credibility).
10 Having questioned Ahmed’s credibility, the agency
11 reasonably relied on his failure to rehabilitate his
12 testimony with reliable corroborating evidence. See Biao
13 Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An
14 applicant’s failure to corroborate his or her testimony may
15 bear on credibility, because the absence of corroboration in
16 general makes an applicant unable to rehabilitate testimony
17 that has already been called into question.”). The agency
18 did not err in declining to afford significant weight to the
19 statements from Ahmed’s wife and brother because they were
20 interested witnesses who were not available for cross-
21 examination. See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir.
22 2013) (deferring to agency’s decision to afford little weight
6 1 to spouse’s letter because it was unsworn and from an
2 interested witness); see also In re H-L-H- & Z-Y-Z-, 25 I. &
3 N. Dec. 209, 215 (BIA 2010) (finding that unsworn letters
4 from alien’s friends and family were insufficient to provide
5 substantial support for alien’s claims because they were from
6 interested witnesses not subject to cross-examination),
7 overruled on other grounds by Hui Lin Huang v. Holder, 677
8 F.3d 130, 133-38 (2d Cir. 2012). Moreover, as discussed
9 above, those documents and one of the police reports either
10 conflicted with Ahmed’s testimony or did not contain
11 information to corroborate his statements. See Y.C., 741
12 F.3d at 334 (“We defer to the agency’s determination of the
13 weight afforded to an alien’s documentary evidence.”).
14 The remainder of Ahmed’s documentary evidence does not
15 rehabilitate his claim. The medical documentation, though
16 not explicitly considered by the IJ, confirms that Ahmed has
17 a scar compatible with a knife wound, but does not otherwise
18 corroborate his claim that he was attacked in 2011 by members
19 of a terrorist group on account of his pro-American views.
20 Moreover, the country conditions evidence is generalized and
21 does not establish that Lashkar-e-Taiba targets returning
22 Pakistani nationals who have pro-American views; rather, the
7 1 record reflects that the group engages in mass violence that
2 broadly affects both Pakistan and India. Ahmed claims that
3 a newspaper article allegedly covering his attack
4 corroborates his claim, but the article is undated and appears
5 to be based solely on Ahmed’s own statements.
6 Given the multiple inconsistencies and the lack of
7 reliable and independent corroboration, the adverse
8 credibility determination is supported by substantial
9 evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,
10 534 F.3d at 165-66. That determination is dispositive of
11 asylum, withholding of removal, and CAT protection because
12 all three claims for relief are based on the same factual
13 predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d
14 Cir. 2006).
15 For the foregoing reasons, the petition for review is
16 DENIED. As we have completed our review, any stay of removal
17 that the Court previously granted in this petition is VACATED,
18 and any pending motion for a stay of removal in this petition
19 is DISMISSED as moot. Any pending request for oral argument
8 1 in this petition is DENIED in accordance with Federal Rule of
2 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
3 34.1(b).
4 FOR THE COURT: 5 Catherine O’Hagan Wolfe 6 Clerk of Court