18-1303 Hoque v. Barr BIA Schoppert, IJ A208 173 466 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 13th day of August, two thousand twenty. 5 6 PRESENT: 7 DEBRA ANN LIVINGSTON, 8 RAYMOND J. LOHIER, JR., 9 STEVEN J. MENASHI, 10 Circuit Judges. 11 _____________________________________ 12 13 MOJAMMAL HOQUE, 14 Petitioner, 15 16 v. 18-1303 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Jaspreet Singh, Jackson Heights, 24 NY. 25 26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 27 General; M. Jocelyn Lopez Wright, 28 Senior Litigation Counsel; Anthony 29 J. Messuri, Trial Attorney, Office 1 of Immigration Litigation, United 2 States Department of Justice, 3 Washington, DC.
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Mojammal Hoque, a native and citizen of
9 Bangladesh, seeks review of an April 3, 2018 decision of the
10 BIA affirming a July 13, 2017 decision of an Immigration Judge
11 (“IJ”) denying his application for asylum, withholding of
12 removal, and relief under the Convention Against Torture
13 (“CAT”). In re Mojammal Hoque, No. A 208 173 466 (B.I.A. Apr.
14 3, 2018), aff’g No. A 208 173 466 (Immig. Ct. N.Y.C. July 13,
15 2017). We assume the parties’ familiarity with the
16 underlying facts and procedural history.
17 Under the circumstances of this case, we have reviewed
18 both the BIA’s and IJ’s decisions. See Yun-Zui Guan v.
19 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The standards
20 of review are well established. See 8 U.S.C.
21 § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76
22 (2d Cir. 2018). “Considering the totality of the
23 circumstances, and all relevant factors, a trier of fact may
2 1 base a credibility determination on the . . . consistency
2 between the applicant’s . . . written and oral statements . .
3 . , the internal consistency of each such statement, the
4 consistency of such statements with other evidence of record
5 . . . without regard to whether an inconsistency, inaccuracy,
6 or falsehood goes to the heart of the applicant’s claim, or
7 any other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii).
8 “We defer . . . to an IJ’s credibility determination unless,
9 from the totality of the circumstances, it is plain that no
10 reasonable fact-finder could make such an adverse credibility
11 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
12 2008); accord Hong Fei Gao, 891 F.3d at 76. We conclude that
13 the adverse credibility determination here is supported by
14 substantial evidence, including Hoque’s contradictory
15 statements about whether he was ever harmed in Bangladesh,
16 inconsistencies regarding the date of the alleged harm, and
17 a lack of reliable corroborating evidence.
18 As an initial matter, the agency did not err in relying
19 on Hoque’s statement during his credible fear interview
20 because the record of this interview bore sufficient indicia
21 of reliability so as to warrant evidentiary weight. See Ming
22 Zhang v. Holder, 585 F.3d 715, 725 (2d Cir. 2009). An
3 1 interpreter was present, the record reflects questions
2 designed to elicit details of Hoque’s asylum claim, and there
3 is no indication that Hoque had difficulty communicating. At
4 his credible fear interview, Hoque described threats from
5 Awami League members, but claimed he had never been physically
6 harmed. In contrast, in his asylum application and during his
7 testimony, Hoque claimed that Awami League members dragged
8 him, handcuffed, to the police station, where police officers
9 then beat him and detained him for six hours. The agency
10 reasonably relied on this inconsistency between Hoque’s
11 interview where he said he was never harmed and his
12 application and testimony, which alleged these beatings and
13 a brief detention. See 8 U.S.C. § 1158(b)(1)(B)(iii).
14 Hoque also provided inconsistent dates for this incident.
15 Between his written application and testimony, he provided
16 several different dates and timelines for his alleged attack,
17 corresponding to two separate elections in Bangladesh. The
18 agency was not required to accept his explanation for these
19 discrepancies—that his high cholesterol, his high blood
20 pressure, and his journey to the United States caused memory
21 loss—because rather than explaining that he could not recall,
22 he gave various specific dates in his statements. Moreover,
4 1 he did not provide any evidence of actual memory loss, or how
2 his medical conditions affected his memory. See Majidi v.
3 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
4 do more than offer a plausible explanation for his
5 inconsistent statements to secure relief; he must demonstrate
6 that a reasonable fact-finder would be compelled to credit
7 his testimony.” (internal quotation marks omitted)).
8 The agency also reasonably determined that Hoque’s
9 documentary evidence did not rehabilitate his credibility
10 which had already been called into question. See Biao Yang
11 v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s
12 failure to corroborate his or her testimony may bear on
13 credibility, because the absence of corroboration in general
14 makes an applicant unable to rehabilitate testimony that has
15 already been called into question.”). The agency acted
16 within its discretion in giving Hoque’s evidence little
17 weight, because it consisted of letters written by
18 individuals who were unavailable to testify. See Y.C. v.
19 Holder, 741 F.3d 324, 332 (2d Cir. 2013) (“We defer to the
20 agency’s determination of the weight afforded to an alien’s
21 documentary evidence.”); Matter of H-L-H- & Z-Y-Z-, 25 I. &
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18-1303 Hoque v. Barr BIA Schoppert, IJ A208 173 466 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 13th day of August, two thousand twenty. 5 6 PRESENT: 7 DEBRA ANN LIVINGSTON, 8 RAYMOND J. LOHIER, JR., 9 STEVEN J. MENASHI, 10 Circuit Judges. 11 _____________________________________ 12 13 MOJAMMAL HOQUE, 14 Petitioner, 15 16 v. 18-1303 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Jaspreet Singh, Jackson Heights, 24 NY. 25 26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 27 General; M. Jocelyn Lopez Wright, 28 Senior Litigation Counsel; Anthony 29 J. Messuri, Trial Attorney, Office 1 of Immigration Litigation, United 2 States Department of Justice, 3 Washington, DC.
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Mojammal Hoque, a native and citizen of
9 Bangladesh, seeks review of an April 3, 2018 decision of the
10 BIA affirming a July 13, 2017 decision of an Immigration Judge
11 (“IJ”) denying his application for asylum, withholding of
12 removal, and relief under the Convention Against Torture
13 (“CAT”). In re Mojammal Hoque, No. A 208 173 466 (B.I.A. Apr.
14 3, 2018), aff’g No. A 208 173 466 (Immig. Ct. N.Y.C. July 13,
15 2017). We assume the parties’ familiarity with the
16 underlying facts and procedural history.
17 Under the circumstances of this case, we have reviewed
18 both the BIA’s and IJ’s decisions. See Yun-Zui Guan v.
19 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The standards
20 of review are well established. See 8 U.S.C.
21 § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76
22 (2d Cir. 2018). “Considering the totality of the
23 circumstances, and all relevant factors, a trier of fact may
2 1 base a credibility determination on the . . . consistency
2 between the applicant’s . . . written and oral statements . .
3 . , the internal consistency of each such statement, the
4 consistency of such statements with other evidence of record
5 . . . without regard to whether an inconsistency, inaccuracy,
6 or falsehood goes to the heart of the applicant’s claim, or
7 any other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii).
8 “We defer . . . to an IJ’s credibility determination unless,
9 from the totality of the circumstances, it is plain that no
10 reasonable fact-finder could make such an adverse credibility
11 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
12 2008); accord Hong Fei Gao, 891 F.3d at 76. We conclude that
13 the adverse credibility determination here is supported by
14 substantial evidence, including Hoque’s contradictory
15 statements about whether he was ever harmed in Bangladesh,
16 inconsistencies regarding the date of the alleged harm, and
17 a lack of reliable corroborating evidence.
18 As an initial matter, the agency did not err in relying
19 on Hoque’s statement during his credible fear interview
20 because the record of this interview bore sufficient indicia
21 of reliability so as to warrant evidentiary weight. See Ming
22 Zhang v. Holder, 585 F.3d 715, 725 (2d Cir. 2009). An
3 1 interpreter was present, the record reflects questions
2 designed to elicit details of Hoque’s asylum claim, and there
3 is no indication that Hoque had difficulty communicating. At
4 his credible fear interview, Hoque described threats from
5 Awami League members, but claimed he had never been physically
6 harmed. In contrast, in his asylum application and during his
7 testimony, Hoque claimed that Awami League members dragged
8 him, handcuffed, to the police station, where police officers
9 then beat him and detained him for six hours. The agency
10 reasonably relied on this inconsistency between Hoque’s
11 interview where he said he was never harmed and his
12 application and testimony, which alleged these beatings and
13 a brief detention. See 8 U.S.C. § 1158(b)(1)(B)(iii).
14 Hoque also provided inconsistent dates for this incident.
15 Between his written application and testimony, he provided
16 several different dates and timelines for his alleged attack,
17 corresponding to two separate elections in Bangladesh. The
18 agency was not required to accept his explanation for these
19 discrepancies—that his high cholesterol, his high blood
20 pressure, and his journey to the United States caused memory
21 loss—because rather than explaining that he could not recall,
22 he gave various specific dates in his statements. Moreover,
4 1 he did not provide any evidence of actual memory loss, or how
2 his medical conditions affected his memory. See Majidi v.
3 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
4 do more than offer a plausible explanation for his
5 inconsistent statements to secure relief; he must demonstrate
6 that a reasonable fact-finder would be compelled to credit
7 his testimony.” (internal quotation marks omitted)).
8 The agency also reasonably determined that Hoque’s
9 documentary evidence did not rehabilitate his credibility
10 which had already been called into question. See Biao Yang
11 v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s
12 failure to corroborate his or her testimony may bear on
13 credibility, because the absence of corroboration in general
14 makes an applicant unable to rehabilitate testimony that has
15 already been called into question.”). The agency acted
16 within its discretion in giving Hoque’s evidence little
17 weight, because it consisted of letters written by
18 individuals who were unavailable to testify. See Y.C. v.
19 Holder, 741 F.3d 324, 332 (2d Cir. 2013) (“We defer to the
20 agency’s determination of the weight afforded to an alien’s
21 documentary evidence.”); Matter of H-L-H- & Z-Y-Z-, 25 I. &
22 N. Dec. 209, 215 (B.I.A. 2010), rev’d on other grounds by Hui
5 1 Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012).
2 Furthermore, the letter from the Bangladesh Nationalist Party
3 president of Hoque’s district did not corroborate Hoque’s
4 claim because it did not discuss any threats or harm to Hoque
5 by rival party members or the police.
6 Considering that the inconsistencies related directly to
7 the sole incident of past harm and Hoque did not submit
8 reliable corroboration to rehabilitate his testimony, the
9 totality of the circumstances supports the agency’s adverse
10 credibility determination. See 8 U.S.C.
11 § 1158(b)(1)(B)(iii); Likai Gao v. Barr, No. 18-358, 2020 WL
12 4290009, at *4 n.8 (2d Cir. July 28, 2020) (“[E]ven a single
13 inconsistency might preclude an alien from showing that an IJ
14 was compelled to find him credible. Multiple inconsistencies
15 would so preclude even more forcefully.”); Xian Tuan Ye v.
16 Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006)
17 (holding that material inconsistency regarding basis of
18 applicant’s asylum claim is substantial evidence for adverse
19 credibility determination). That determination is
20 dispositive of asylum, withholding of removal, and CAT relief
21 because all three claims are based on the same factual
22 predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d
6 1 Cir. 2006).
2 For the foregoing reasons, the petition for review is
3 DENIED. All pending motions and applications are DENIED and
4 stays VACATED.
5 FOR THE COURT: 6 Catherine O’Hagan Wolfe, 7 Clerk of Court