Hasan v. Garland

• Court: Court of Appeals for the Second Circuit
• Decided: November 28, 2023
• Docket: 21-6631
• Status: Unpublished

Opinion

21-6631 Hasan v. Garland BIA Conroy, IJ A206 147 863

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 for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 29th day of November, two thousand 4 twenty-three. 5 6 PRESENT: 7 SUSAN L. CARNEY, 8 WILLIAM J. NARDINI, 9 MARIA ARAÚJO KAHN, 10 Circuit Judges. 11 _____________________________________ 12 13 MOHAMMAD HASAN, 14 Petitioner, 15 16 v. 21-6631 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Khagendra Gharti-Chhetry, Esq., New York, 24 NY. 1 FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant 2 Attorney General; Cindy S. Ferrier, Assistant 3 Director; Andrew N. O’Malley, Senior 4 Litigation Counsel, Office of Immigration 5 Litigation, United States Department of 6 Justice, Washington, DC.

7 UPON DUE CONSIDERATION of this petition for review of a Board of

8 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND

9 DECREED that the petition for review is DENIED.

10 Petitioner Mohammad Hasan, a native and citizen of Bangladesh, seeks

11 review of a November 18, 2021, decision of the BIA affirming a November 20, 2018,

12 decision of an Immigration Judge (“IJ”) denying his application for asylum,

13 withholding of removal, and relief under the Convention Against Torture

14 (“CAT”). In re Hasan, No. A 206 147 863 (B.I.A. Nov. 18, 2021), aff’g No. A 206 147

15 863 (Immig. Ct. N.Y. City Nov. 20, 2018). We assume the parties’ familiarity with

16 the underlying facts and procedural history.

17 We have reviewed both the IJ’s and the BIA’s decisions “for the sake of

18 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.

19 2006). Hasan challenges the agency’s denial of a continuance, as well as the

20 agency’s denial of asylum, withholding of removal, and CAT relief.

2 1 I. Continuance and Due Process

2 We review the agency’s denial of a continuance for abuse of discretion,

3 Roman v. Garland, 49 F.4th 157, 166 (2d Cir. 2022), and we review a due process

4 claim de novo, see Dale v. Barr, 967 F.3d 133, 138 (2d Cir. 2020). An IJ “may grant

5 a continuance for good cause shown,” 8 C.F.R. § 1003.29, 1 and is “accorded wide

6 latitude in calendar management”; however, an abuse of discretion will be found

7 if the IJ’s “decision rests on an error of law . . . or a clearly erroneous factual

8 finding” or if the decision “cannot be located within the range of permissible

9 decisions,” Morgan v. Gonzales, 445 F.3d 549, 551–52 (2d Cir. 2006) (quoting Zervos

10 v. Verizon New York, Inc., 252 F.3d 163, 169 (2d Cir. 2001)). Moreover, to establish

11 a due process violation stemming from the denial of a continuance, Hasan had to

12 establish that he was “denied a full and fair opportunity to present [his] claims”

13 or that the agency “otherwise deprived [him] of fundamental fairness,” Burger v.

14 Gonzales, 498 F.3d 131, 134 (2d Cir. 2007) (quotation marks omitted), and that he

15 was prejudiced, Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008).

1Citations refer to the version of the regulations in place at the time of the IJ’s decision. See Garcia v. Garland, 64 F.4th 62, 67 n.3 (2d Cir. 2023).

3 1 The agency did not abuse its discretion or deprive Hasan of due process.

2 Hasan has abandoned a claim that the agency erred in denying a continuance to

3 obtain supporting documents. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541

4 n.1 (2d Cir. 2005) (finding claim abandoned when it was not raised in petitioner’s

5 brief). In any event, the IJ reasonably denied a continuance because Hasan’s

6 application had been pending for more than three years, he had been represented

7 throughout that period, and his motion did not identify why he had been unable

8 to obtain documents earlier. Despite additional time to produce documents after

9 the hearing, Hasan failed to timely do so, and has not explained his failure to

10 comply with the deadline. 2

11 As to Hasan’s request for a continuance based on his medical condition, he

12 did not corroborate that he had back pain and required medication, nor did he

13 identify any adverse effects of any medication. See Pretzantzin v. Holder, 736 F.3d

14 641, 651 (2d Cir. 2013) (holding that “the arguments of counsel are not evidence”).

15 As the BIA observed, the medical record Hasan presented on appeal did not

2 Hasan does not challenge the BIA’s decision not to consider those documents for the first time on appeal (or remand for their consideration). We therefore decline to address this abandoned issue. See Yueqing Zhang, 426 F.3d at 541 n.1.

4 1 establish that his ability to testify was impaired, as it did not address whether he

2 had back pain or was taking medication on the day of his hearing, or describe the

3 severity of his self-reported drowsiness from pain medication.

4 Hasan also faults the IJ for failing to inquire about the effects of his

5 medication. But the IJ was not required to do so under the circumstances. “[A]n

6 alien is presumed to be competent to participate in removal proceedings”

7 and, “[a]bsent indicia of mental incompetency, an [IJ] is under no obligation to

8 analyze an alien’s competency.” Matter of M-A-M-, 25 I. & N. Dec. 474, 477 (B.I.A.

9 2011). Hasan’s attorney never asserted that Hasan was not competent; his

10 argument was that Hasan was not prepared to testify because his medical

11 condition had hindered his ability to consult with counsel the night before the

12 hearing. Moreover, although the IJ identified issues with Hasan’s demeanor, his

13 testimony does not suggest that he was not competent.

14 II. Credibility

15 We review an adverse credibility determination “under the substantial

16 evidence standard.” Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir.

17 2018). “[T]he administrative findings of fact are conclusive unless any reasonable

18 adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.

5 1 § 1252(b)(4)(B). “Considering the totality of the circumstances, and all relevant

2 factors, a trier of fact may base a credibility determination on the demeanor,

3 candor or responsiveness of the applicant . . . , the consistency between the

4 applicant’s . . . written and oral statements (whenever made and whether or not

5 under oath, and considering the circumstances under which the statements were

6 made), the internal consistency of each such statement, . . . and any inaccuracies or

7 falsehoods in such statements without regard to whether an inconsistency,

8 inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other

9 relevant factor.” Id. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility

10 determination unless, from the totality of the circumstances, it is plain that no

11 reasonable fact-finder could make such an adverse credibility ruling.” Xiu Xia

12 Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d at 76.

13 The agency reasonably relied on inconsistencies in Hasan’s statements

14 about whether and how he was harmed in 2010, and on his evasive and

15 nonresponsive answers to questions about those inconsistencies. See 8 U.S.C.

16 § 1158(b)(1)(B)(iii); Li Hua Lin v. U.S. Dep’t of Just., 453 F.3d 99, 109 (2d Cir. 2006)

17 (affording “particular deference” to an IJ’s demeanor finding because the IJ is “in

18 the best position to evaluate whether apparent problems in the . . . testimony

6 1 suggest a lack of credibility or, rather, can be attributed to an innocent cause such

2 as difficulty understanding the question” (quotation marks omitted)). During his

3 credible fear interview, Hasan stated that he was first harmed in November 2012. 3

4 On direct examination at his hearing, Hasan testified that members of an opposing

5 party attacked him twice, in December 2011 and November 2012. His written

6 statements also described an assault in 2010. On cross-examination, Hasan

7 contradicted both his prior testimony and the written statements regarding

8 whether he was home during the 2010 assault, when he escaped, whether his

9 parents were beaten, whether he was beaten, and whether his parents reported

10 this incident to the police; and he offered shifting and nonresponsive explanations

11 for these inconsistencies.

12 The agency was not required to accept his inconsistent explanations, and his

13 explanation that there were two incidents in 2010 did not resolve the inconsistency

14 about whether there was a 2010 assault. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d

3 Hasan does not challenge the reliability of the credible fear interview record. See Yueqing Zhang, 426 F.3d at 541 n.1; see also Ming Zhang v. Holder, 585 F.3d 715, 725 (2d Cir. 2009) (holding that the agency may consider statements at a credible fear interview when assessing credibility so long as “the record of [the] . . . interview displays the hallmarks of reliability”).

7 1 Cir. 2005) (“A petitioner must do more than offer a plausible explanation for his

2 inconsistent statements to secure relief; he must demonstrate that a reasonable

3 fact-finder would be compelled to credit his testimony.” (quotation marks

4 omitted)). Hasan’s explanation here that he did not initially mention one 2010

5 incident because it was not an “attack” does not explain why he failed to mention

6 the other 2010 incident at his interview or on direct examination. Hasan also

7 argues that he omitted the 2010 attack because he was worried about not having

8 supporting documents, he was impaired by pain medications, and he did not have

9 an opportunity to review his full application before the hearing. However, he

10 affirmed that his application and statement were accurate at the beginning of his

11 hearing, and an update he admitted reviewing was about the 2010 incident.

12 Hasan’s responses at the hearing do not compel a conclusion that he was having

13 difficulty understanding the proceedings. Id. at 81 n.1 (observing that IJs are

14 generally in the best position to decide whether a witness understood questions).

15 As the Government argues, Hasan’s argument that there were

16 interpretation problems during the hearing is unexhausted and therefore not

17 properly before us. See Ud Din v. Garland, 72 F.4th 411, 419 (2d Cir. 2023)

18 (explaining that issue exhaustion is “mandatory” when the Government raises it).

8 1 And there is no merit to Hasan’s argument that the IJ failed to recognize that his

2 testimony was consistent in other respects because some false statements may

3 infect the entirety of the testimony. See Siewe v. Gonzalez, 480 F.3d 160, 170 (2d

4 Cir. 2007) (“An IJ may, either expressly or impliedly, rely on [the maxim false in

5 one thing, false in everything] to discredit evidence that does not benefit from

6 corroboration or authentication independent of the petitioner’s own credibility.”

7 (emphasis omitted)).

8 We agree with Hasan that the distinction between his descriptions of

9 himself as a “simple” or “general” worker was not strongly probative of his

10 credibility. See Gurung v. Barr, 929 F.3d 56, 61 (2d Cir. 2019) (holding that “trivial

11 differences in the wording of statements describing the same event are not

12 sufficient to create inconsistencies . . . especially . . . where an immigrant applicant

13 is relying on an interpreter to convey his story”). But the IJ relied on Hasan’s

14 inconsistent descriptions of his activities in addition to his title and acknowledged

15 that the inconsistency was minor. Even assuming error in this one finding,

16 remand is not warranted given the other inconsistencies. Id. at 62.

17 Further, the agency did not err in finding that the documentary evidence

18 failed to rehabilitate Hasan’s claim or otherwise satisfy his burden of proof. “An

9 1 applicant’s failure to corroborate his or her testimony may bear on credibility,

2 because the absence of corroboration in general makes an applicant unable to

3 rehabilitate testimony that has already been called into question.” Biao Yang v.

4 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). 4 The only evidence Hasan provided to

5 the IJ to corroborate his alleged persecution was an affidavit from his brother in

6 the United States. The agency reasonably gave minimal weight to that document

7 because it was from an interested party who was not made available for cross-

8 examination. See Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) (“We generally

9 defer to the agency’s evaluation of the weight to be afforded an applicant’s

10 documentary evidence.”); Likai Gao v. Barr, 968 F.3d 137, 149 (2d Cir. 2020)

11 (deferring to IJ’s decision to accord “little weight” to letters from declarants who

12 were “interested parties” and not available for cross-examination). No other

13 evidence in the record before the IJ corroborated Hasan’s alleged political activities

14 and past abuse.

15 In sum, the multiple inconsistencies related to an event that was a basis of

4 Hasan challenges the IJ’s conclusion that corroborating evidence was reasonably available. That challenge is misplaced. Because the agency found Hasan not credible, the absence of other evidence—regardless of its availability—prevented him from rehabilitating his testimony. See Biao Yang, 496 F.3d at 273.

10 1 Hasan’s claim and the lack of reliable corroboration constitute substantial

2 evidence for the adverse credibility determination. See Likai Gao, 968 F.3d at 145

3 n.8 (“[E]ven a single inconsistency might preclude an alien from showing that an

4 IJ was compelled to find him credible. Multiple inconsistencies would so

5 preclude even more forcefully.”); Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d

6 289, 294 (2d Cir. 2006) (“Where the IJ’s adverse credibility finding is based on

7 specific examples in the record of inconsistent statements . . . about matters

8 material to [a] claim of persecution . . . , a reviewing court will generally not be

9 able to conclude that a reasonable adjudicator was compelled to find otherwise.”);

10 Biao Yang, 496 F.3d at 273. The adverse credibility determination is dispositive

11 because asylum, withholding of removal, and CAT relief were all based on the

12 same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).

13 For the foregoing reasons, the petition for review is DENIED. All pending

14 motions and applications are DENIED and stays VACATED.

15 FOR THE COURT: 16 Catherine O’Hagan Wolfe, 17 Clerk of Court