17-117 Dhali v. Sessions BIA Christensen, IJ A205 879 064
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 27th day of June, two thousand eighteen. 5 6 PRESENT: 7 RALPH K. WINTER, 8 GUIDO CALABRESI, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 HARUN DHALI, 14 15 Petitioner, 16 17 v. 17-117 18 NAC 19 20 JEFFERSON B. SESSIONS III, 21 UNITED STATES ATTORNEY GENERAL, 22 23 Respondent. 24 _____________________________________ 25 26 FOR PETITIONER: Khagendra Gharti-Chhetry, 27 Chhetry & Associates, P.C., New 28 York, NY. 1 2 FOR RESPONDENT: Chad A. Readler, Acting 3 Assistant Attorney General; 4 Anthony C. Payne, Assistant 5 Director; Kathleen Kelly 6 Volkert, Trial Attorney, Office 7 of Immigration Litigation, 8 United States Department of 9 Justice, Washington, DC. 10 11 UPON DUE CONSIDERATION of this petition for review of a
12 Board of Immigration Appeals (“BIA”) decision, it is hereby
13 ORDERED, ADJUDGED, AND DECREED that the petition for review
14 is DENIED.
15 Petitioner Harun Dhali, a native and citizen of
16 Bangladesh, seeks review of a December 13, 2016, decision of
17 the BIA affirming a March 6, 2016, decision of an Immigration
18 Judge (“IJ”) denying Dhali’s application for asylum,
19 withholding of removal, and relief under the Convention
20 Against Torture (“CAT”). In re Harun Dhali, No. A205 879 064
21 (B.I.A. Dec. 13, 2016), aff’g No. A205 879 064 (Immig. Ct.
22 N.Y. City Mar. 6, 2016). We assume the parties’ familiarity
23 with the underlying facts and procedural history in this case.
24 Under the circumstances of this case, we have reviewed
25 both the IJ’s and the BIA’s decisions “for the sake of
26 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
27 524, 528 (2d Cir. 2006). The applicable standards of review
2 1 are well established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia
2 Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
3 The REAL ID Act provides that the agency must
4 “[c]onsider[] the totality of the circumstances,” and may
5 base a credibility finding on inconsistencies or omissions in
6 an applicant’s or his witness’s statements, “without regard
7 to whether” they go “to the heart of the applicant’s claim.”
8 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-
9 64, 166-67. “A petitioner must do more than offer a plausible
10 explanation for his inconsistent statements to secure relief;
11 he must demonstrate that a reasonable fact-finder would be
12 compelled to credit his testimony.” Majidi v. Gonzales, 430
13 F.3d 77, 80 (2d Cir. 2005) (emphasis added) (citation and
14 internal quotation marks omitted). “We defer . . . to an
15 IJ’s credibility determination unless . . . it is plain that
16 no reasonable fact-finder could make such an adverse
17 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. For the
18 reasons that follow, we conclude that the agency did not err
19 in finding Dhali not credible.
20 Initially, the agency reasonably relied on both the
21 inconsistency between Dhali’s application and party
22 certificate about whether he held any leadership positions in
3 1 the party and upon the omission of Dhali’s past harm from the
2 party certificate. Id. at 163-67. Dhali stated in his
3 application that he held leadership roles in the Jatiya Party,
4 but his party certificate states only that he was a member of
5 the National Party Mohakhali Thana Unit Committee. Moreover,
6 although the party certificate postdates Dhali’s alleged
7 persecution, it fails to mention that he suffered harm because
8 of his party activities. The agency was not required to
9 credit Dhali’s explanation that he had requested proof of
10 only his party membership because, as the IJ observed, if
11 Dhali had held any leadership positions or suffered
12 persecution for his party activities, this information would
13 be expected to be included in his party certificate. Majidi,
14 430 F.3d at 80.
15 The agency also reasonably based the credibility
16 determination on an inconsistency between Dhali’s application
17 and testimony about the political affiliations of the men who
18 allegedly extorted him. Xiu Xia Lin, 534 F.3d at 163-64.
19 While Dhali asserted in his application that two Awami League
20 terrorists had extorted him, he testified that one man
21 belonged to the Bangladesh Nationalist Party and the other to
4 1 the Awami League. Dhali did not explain this inconsistency.
2 Majidi, 430 F.3d at 80.
3 The agency also reasonably relied on the discrepancies
4 between Dhali’s application, testimony, and credible fear
5 interview about whether he was targeted for his political
6 activities and what these activities entailed. Ming Zhang v.
7 Holder, 585 F.3d 715, 724-25 (2d Cir. 2009). First, although
8 Dhali stated in his application and testimony that he was
9 targeted for extortion because of his support for the Jatiya
10 Party, he stated during his credible fear interview that he
11 was targeted because he built an expensive home in his
12 village. Second, Dhali’s testimony and credible fear
13 interview statements were inconsistent about whether his
14 assailants ever mentioned his political activities. Third,
15 as noted above, Dhali asserted in his application that he
16 held leadership positions in the Jatiya Party, but stated
17 during his credible fear interview that his party activities
18 consisted of posting pictures. The agency was not required
19 to credit Dhali’s explanation that he misspoke during his
20 credible fear interview because he had a fever. Majidi, 430
21 F.3d at 80. The IJ correctly observed that Dhali’s interview
5 1 record displayed the requisite “hallmarks of reliability.”
2 Ming Zhang, 585 F.3d at 725.
3 Finally, the IJ did not err by finding that Dhali’s party
4 certificate and joining letter were questionable on their
5 face, likely fraudulent, and further undermined Dhali’s
6 credibility. Borovikova v. U.S. Dep’t of Justice, 435 F.3d
7 151, 157-58 (2d Cir. 2006). As the IJ observed, while Dhali
8 claimed that his party certificate was from 2012 and that his
9 party-joining letter was from 1987, both documents were in
10 near-identical condition, appeared to have been printed from
11 a computer, and were on the same letterhead.
Free access — add to your briefcase to read the full text and ask questions with AI
17-117 Dhali v. Sessions BIA Christensen, IJ A205 879 064
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 27th day of June, two thousand eighteen. 5 6 PRESENT: 7 RALPH K. WINTER, 8 GUIDO CALABRESI, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 HARUN DHALI, 14 15 Petitioner, 16 17 v. 17-117 18 NAC 19 20 JEFFERSON B. SESSIONS III, 21 UNITED STATES ATTORNEY GENERAL, 22 23 Respondent. 24 _____________________________________ 25 26 FOR PETITIONER: Khagendra Gharti-Chhetry, 27 Chhetry & Associates, P.C., New 28 York, NY. 1 2 FOR RESPONDENT: Chad A. Readler, Acting 3 Assistant Attorney General; 4 Anthony C. Payne, Assistant 5 Director; Kathleen Kelly 6 Volkert, Trial Attorney, Office 7 of Immigration Litigation, 8 United States Department of 9 Justice, Washington, DC. 10 11 UPON DUE CONSIDERATION of this petition for review of a
12 Board of Immigration Appeals (“BIA”) decision, it is hereby
13 ORDERED, ADJUDGED, AND DECREED that the petition for review
14 is DENIED.
15 Petitioner Harun Dhali, a native and citizen of
16 Bangladesh, seeks review of a December 13, 2016, decision of
17 the BIA affirming a March 6, 2016, decision of an Immigration
18 Judge (“IJ”) denying Dhali’s application for asylum,
19 withholding of removal, and relief under the Convention
20 Against Torture (“CAT”). In re Harun Dhali, No. A205 879 064
21 (B.I.A. Dec. 13, 2016), aff’g No. A205 879 064 (Immig. Ct.
22 N.Y. City Mar. 6, 2016). We assume the parties’ familiarity
23 with the underlying facts and procedural history in this case.
24 Under the circumstances of this case, we have reviewed
25 both the IJ’s and the BIA’s decisions “for the sake of
26 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
27 524, 528 (2d Cir. 2006). The applicable standards of review
2 1 are well established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia
2 Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
3 The REAL ID Act provides that the agency must
4 “[c]onsider[] the totality of the circumstances,” and may
5 base a credibility finding on inconsistencies or omissions in
6 an applicant’s or his witness’s statements, “without regard
7 to whether” they go “to the heart of the applicant’s claim.”
8 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-
9 64, 166-67. “A petitioner must do more than offer a plausible
10 explanation for his inconsistent statements to secure relief;
11 he must demonstrate that a reasonable fact-finder would be
12 compelled to credit his testimony.” Majidi v. Gonzales, 430
13 F.3d 77, 80 (2d Cir. 2005) (emphasis added) (citation and
14 internal quotation marks omitted). “We defer . . . to an
15 IJ’s credibility determination unless . . . it is plain that
16 no reasonable fact-finder could make such an adverse
17 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. For the
18 reasons that follow, we conclude that the agency did not err
19 in finding Dhali not credible.
20 Initially, the agency reasonably relied on both the
21 inconsistency between Dhali’s application and party
22 certificate about whether he held any leadership positions in
3 1 the party and upon the omission of Dhali’s past harm from the
2 party certificate. Id. at 163-67. Dhali stated in his
3 application that he held leadership roles in the Jatiya Party,
4 but his party certificate states only that he was a member of
5 the National Party Mohakhali Thana Unit Committee. Moreover,
6 although the party certificate postdates Dhali’s alleged
7 persecution, it fails to mention that he suffered harm because
8 of his party activities. The agency was not required to
9 credit Dhali’s explanation that he had requested proof of
10 only his party membership because, as the IJ observed, if
11 Dhali had held any leadership positions or suffered
12 persecution for his party activities, this information would
13 be expected to be included in his party certificate. Majidi,
14 430 F.3d at 80.
15 The agency also reasonably based the credibility
16 determination on an inconsistency between Dhali’s application
17 and testimony about the political affiliations of the men who
18 allegedly extorted him. Xiu Xia Lin, 534 F.3d at 163-64.
19 While Dhali asserted in his application that two Awami League
20 terrorists had extorted him, he testified that one man
21 belonged to the Bangladesh Nationalist Party and the other to
4 1 the Awami League. Dhali did not explain this inconsistency.
2 Majidi, 430 F.3d at 80.
3 The agency also reasonably relied on the discrepancies
4 between Dhali’s application, testimony, and credible fear
5 interview about whether he was targeted for his political
6 activities and what these activities entailed. Ming Zhang v.
7 Holder, 585 F.3d 715, 724-25 (2d Cir. 2009). First, although
8 Dhali stated in his application and testimony that he was
9 targeted for extortion because of his support for the Jatiya
10 Party, he stated during his credible fear interview that he
11 was targeted because he built an expensive home in his
12 village. Second, Dhali’s testimony and credible fear
13 interview statements were inconsistent about whether his
14 assailants ever mentioned his political activities. Third,
15 as noted above, Dhali asserted in his application that he
16 held leadership positions in the Jatiya Party, but stated
17 during his credible fear interview that his party activities
18 consisted of posting pictures. The agency was not required
19 to credit Dhali’s explanation that he misspoke during his
20 credible fear interview because he had a fever. Majidi, 430
21 F.3d at 80. The IJ correctly observed that Dhali’s interview
5 1 record displayed the requisite “hallmarks of reliability.”
2 Ming Zhang, 585 F.3d at 725.
3 Finally, the IJ did not err by finding that Dhali’s party
4 certificate and joining letter were questionable on their
5 face, likely fraudulent, and further undermined Dhali’s
6 credibility. Borovikova v. U.S. Dep’t of Justice, 435 F.3d
7 151, 157-58 (2d Cir. 2006). As the IJ observed, while Dhali
8 claimed that his party certificate was from 2012 and that his
9 party-joining letter was from 1987, both documents were in
10 near-identical condition, appeared to have been printed from
11 a computer, and were on the same letterhead.
12 Given the foregoing findings, the adverse credibility
13 determination is supported by the “totality of the
14 circumstances.” Xiu Xia Lin, 534 F.3d at 167. Dhali does
15 not challenge the agency’s finding that his corroborating
16 evidence was insufficient to rehabilitate his credibility and
17 has therefore waived review of that finding in this Court.
18 See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998).
19 The credibility determination is dispositive of asylum,
20 withholding of removal, and CAT relief because all three
21 claims are based on the same factual predicate. See Paul v.
22 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
6 1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of removal
3 that the Court previously granted in this petition is VACATED,
4 and any pending motion for a stay of removal in this petition
5 is DISMISSED as moot. Any pending request for oral argument
6 in this petition is DENIED in accordance with Federal Rule of
7 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
8 34.1(b).
9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, 11 Clerk of Court