Ali v. Garland

Opinion

20-2727 Ali v. Garland BIA

Bither, IJ

A088 015 332

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 15th day of December, two thousand twenty- 5 two. 6 7 PRESENT: 8 RICHARD J. SULLIVAN, 9 MYRNA PÉREZ, 10 ALISON J. NATHAN, 11 Circuit Judges. 12 _____________________________________ 13 14 MOHAMMED NOOR ALI, 15 Petitioner, 16 17 v. 20-2727 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Khagendra Gharti-Chhetry, Esq., 25 New York, NY. 26 27 FOR RESPONDENT: Brian M. Boynton, Acting Assistant 28 Attorney General; Anna E. Juarez,

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1 Senior Litigation Counsel; James 2 A. Hurley, Attorney, Office of 3 Immigration Litigation, United 4 States Department of Justice, 5 Washington, DC.

6 UPON DUE CONSIDERATION of this petition for review of a 7 Board of Immigration Appeals (“BIA”) decision, it is hereby 8 ORDERED, ADJUDGED, AND DECREED that the petition for review 9 is DENIED. 10 Petitioner Mohammed Noor Ali, a native and citizen of 11 Bangladesh, seeks review of a July 20, 2020, decision of the 12 BIA affirming an April 25, 2018, decision of an Immigration 13 Judge (“IJ”) denying his claim of withholding of removal. 1 14 In re Mohammed Noor Ali, No. A 088 015 332 (B.I.A. July 20, 15 2020), aff’g No. A 088 015 332 (Immigr. Ct. N.Y.C. Apr. 25, 16 2018). We assume the parties’ familiarity with the 17 underlying facts and procedural history. 18 We have reviewed the IJ’s decision as modified by the 19 BIA, and because the BIA based its affirmance only on the 20 IJ’s adverse credibility determination, our review is limited

1 The BIA considered only withholding of removal because we previously remanded the case only as to withholding of removal, finding that we lacked jurisdiction to review Ali’s unexhausted challenges to the denial of asylum and relief under the Convention Against Torture. See Ali v. Holder, 595 F. App’x 64, 66–67 (2d Cir. 2015) (summary order).

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1 to that issue. See Xue Hong Yang v. U.S. Dep’t of Justice, 2 426 F.3d 520, 522 (2d Cir. 2005). We review adverse 3 credibility determinations for substantial evidence, see Hong 4 Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018), and treat 5 the agency’s findings of fact as conclusive “unless any 6 reasonable adjudicator would be compelled to conclude to the 7 contrary,” 8 U.S.C. § 1252(b)(4)(B). The IJ may, 8 “[c]onsidering the totality of the circumstances” base a 9 credibility finding on inconsistencies in an applicant’s 10 statements or between his statements and other evidence, 11 “without regard to whether an inconsistency, inaccuracy, or 12 falsehood goes to the heart of the applicant’s claim.” 8 13 U.S.C. § 1158(b)(1)(B)(iii); see also 8 U.S.C. § 14 1231(b)(3)(C) (incorporating § 1158(b)(1)(B)(iii), which 15 governs asylum claims, into the standard for withholding of 16 removal claims). “We defer . . . to an IJ’s adverse 17 credibility determination unless, from the totality of the 18 circumstances, it is plain that no reasonable fact-finder 19 could make such an adverse credibility ruling.” Xiu Xia Lin 20 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei 21 Gao, 891 F.3d at 76. Substantial evidence supports the

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1 adverse credibility determination. 2 The agency reasonably relied on inconsistencies 3 regarding Ali’s identity, his entry date, and the year of an 4 alleged arrest. The record supports the agency’s finding 5 that Ali failed to establish his identity because he presented 6 three birth certificates, one with the name “Noor Ali Sumon,” 7 and two with “Mohammed Noor Ali,” but he did not provide an 8 authenticated birth certificate to resolve the issue, and he 9 offered various contradictory explanations for the 10 inconsistent documents. See Majidi v. Gonzalez, 430 F.3d 77, 11 80 (2d Cir. 2005) (“A petitioner must do more than offer a 12 plausible explanation for his inconsistent statements to 13 secure relief; he must demonstrate that a reasonable fact- 14 finder would be compelled to credit his testimony.” (internal 15 quotation marks omitted)). 16 The record also supports the agency’s finding of 17 inconsistencies relating to Ali’s date of entry to the United 18 States and the date of an arrest in Bangladesh. Ali admitted 19 the allegation in the notice to appear that he entered in 20 January 2004, but testified to entering the United States in 21 April or December 2005. The agency reasonably relied on this

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1 inconsistency, which calls into question whether Ali was in 2 Bangladesh at the time of the alleged incidents of 3 persecution. For example, he testified that he was arrested 4 in Bangladesh in May 2004. Ali did not resolve this 5 inconsistency with corroborating evidence, either at his 6 first hearing or on remand. See Biao Yang v. Gonzales, 496 7 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s failure to 8 corroborate his or her testimony may bear on credibility, 9 because the absence of corroboration in general makes an 10 applicant unable to rehabilitate testimony that has already 11 been called into question.”); see also Chuilu Liu v. Holder, 12 575 F.3d 193, 198 (2d Cir. 2009) (holding that the applicant 13 “bears the ultimate burden” to submit corroborating evidence 14 “without prompting from the IJ”). Moreover, some of his 15 written statements and corroborating letters inconsistently 16 identified this arrest as occurring a year earlier, in May 17 2003. 18 Taken together, these inconsistencies provide 19 substantial evidence for the agency’s adverse credibility 20 determination. See Xiu Xia Lin, 534 F.3d at 166–67.

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1 For the foregoing reasons, the petition for review is 2 DENIED. All pending motions and applications are DENIED and 3 stays VACATED.

4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, 6 Clerk of Court