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
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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
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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
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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,
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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
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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
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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