21-6280 Hossain v. Garland BIA Segal, IJ A206 498 957
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 7th day of May, two thousand twenty- four.
PRESENT: PIERRE N. LEVAL, RICHARD J. SULLIVAN, MICHAEL H. PARK, Circuit Judges. _____________________________________
AMIR HOSSAIN, Petitioner,
v. 21-6280 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: Usman B. Ahmad, Long Island City, NY.
FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant Attorney General; Justin R. Markel, Senior Litigation Counsel; Brooke M. Maurer, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is DENIED.
Petitioner Amir Hossain, a native and citizen of Bangladesh, seeks review
of an April 12, 2021, decision of the BIA summarily affirming an August 28, 2018,
decision of an Immigration Judge (“IJ”) denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture
(“CAT”). In re Amir Hossain, No. A206 498 957 (B.I.A. Apr. 12, 2021), aff’g No.
A206 498 957 (Immig. Ct. N.Y. City Aug. 28, 2018). Hossain argues that the IJ
erred in finding that he was not credible in connection with his claims of past
persecution and fear of future persecution at the hands of a rival political party.
We assume the parties’ familiarity with the underlying facts and procedural
history.
2 As a threshold matter, we lack jurisdiction to review Hossain’s challenge to
the BIA’s decision to summarily affirm the IJ’s decision and to not issue a three-
member opinion. See Kambolli v. Gonzales, 449 F.3d 454, 461–63 (2d Cir. 2006). It
is well settled that “summary affirmance of IJ decisions by a single Board member
does not deprive an asylum applicant of due process.” Yu Sheng Zhang v. U.S.
Dep’t of Just., 362 F.3d 155, 157 (2d Cir. 2004); see also 8 C.F.R. § 1003.1(e)(6) (setting
out circumstances required for three-member decision). Because the BIA
summarily affirmed without opinion, we review the IJ’s decision as the final
agency determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008).
We review an adverse credibility determination “under the substantial
evidence standard,” Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018), and
“the administrative findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary,” 8 U.S.C.
§ 1252(b)(4)(B). “Considering the totality of the circumstances, and all relevant
factors, a trier of fact may base a credibility determination on the demeanor,
candor, or responsiveness of the applicant . . . , the inherent plausibility of the
applicant’s . . . account, the consistency between the applicant’s . . . written and
oral statements (whenever made and whether or not under oath, and considering
3 the circumstances under which the statements were made), the internal
consistency of each such statement, . . . and any inaccuracies or falsehoods in such
statements, without regard to whether an inconsistency, inaccuracy, or falsehood
goes to the heart of the applicant’s claim, or any other relevant factor.” 8 U.S.C.
§ 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility determination unless, from
the totality of the circumstances, it is plain that no reasonable fact-finder could
make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162,
167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d at 76. Hossain alleged that he was
attacked multiple times by political rivals because of his membership in the
Bangladesh Nationalist Party. Substantial evidence supports the IJ’s adverse
credibility determination.
As an initial matter, the IJ did not err in relying on the record of Hossain’s
credible fear interview. A credible fear interview warrants “close examination”
because it may “be perceived as coercive” by the alien or fail to “elicit all of the
details supporting an asylum claim.” Ming Zhang v. Holder, 585 F.3d 715, 724–25
(2d Cir. 2009). Nevertheless, “[w]here the record of a credible fear interview
displays the hallmarks of reliability, it appropriately can be considered in
assessing an alien’s credibility.” Id. at 725. “Hallmarks of reliability” include
4 whether the interview is memorialized in a typewritten record of questions and
answers, whether the record demonstrates that the applicant understood the
questions and reflects questions about past harm or fear of future harm, and
whether the interview was conducted with an interpreter. Id. The IJ correctly
observed that those hallmarks of reliability were present here. A Bengali
interpreter was used (and Hossain listed Bengali on his asylum application as his
native language); the interviewer asked Hossain questions designed to elicit an
asylum claim; the questions and answers were memorialized in a typewritten
document; and at no point did Hossain object to the interpreter or demonstrate
difficulty understanding the interviewer’s questions.
The IJ reasonably relied on inconsistencies in Hossain’s statements at
various stages of the proceedings. See 8 U.S.C. § 1158(b)(1)(B)(iii). First, Hossain
testified inconsistently about how he injured his leg, initially claiming he was run
over by a car and later stating that he was hit by a Molotov cocktail. Hossain
sought to explain this inconsistency by stating that he had avoided disclosing the
Molotov cocktail attack because he was told it would be perceived as violent.
However, the IJ was not required to accept Hossain’s explanation that he had
feared disclosing the Molotov cocktail attack; Hossain had alluded to a Molotov
5 cocktail in his credible fear interview and included a later Molotov cocktail attack
in his application. See Majidi v.
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21-6280 Hossain v. Garland BIA Segal, IJ A206 498 957
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 7th day of May, two thousand twenty- four.
PRESENT: PIERRE N. LEVAL, RICHARD J. SULLIVAN, MICHAEL H. PARK, Circuit Judges. _____________________________________
AMIR HOSSAIN, Petitioner,
v. 21-6280 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: Usman B. Ahmad, Long Island City, NY.
FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant Attorney General; Justin R. Markel, Senior Litigation Counsel; Brooke M. Maurer, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is DENIED.
Petitioner Amir Hossain, a native and citizen of Bangladesh, seeks review
of an April 12, 2021, decision of the BIA summarily affirming an August 28, 2018,
decision of an Immigration Judge (“IJ”) denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture
(“CAT”). In re Amir Hossain, No. A206 498 957 (B.I.A. Apr. 12, 2021), aff’g No.
A206 498 957 (Immig. Ct. N.Y. City Aug. 28, 2018). Hossain argues that the IJ
erred in finding that he was not credible in connection with his claims of past
persecution and fear of future persecution at the hands of a rival political party.
We assume the parties’ familiarity with the underlying facts and procedural
history.
2 As a threshold matter, we lack jurisdiction to review Hossain’s challenge to
the BIA’s decision to summarily affirm the IJ’s decision and to not issue a three-
member opinion. See Kambolli v. Gonzales, 449 F.3d 454, 461–63 (2d Cir. 2006). It
is well settled that “summary affirmance of IJ decisions by a single Board member
does not deprive an asylum applicant of due process.” Yu Sheng Zhang v. U.S.
Dep’t of Just., 362 F.3d 155, 157 (2d Cir. 2004); see also 8 C.F.R. § 1003.1(e)(6) (setting
out circumstances required for three-member decision). Because the BIA
summarily affirmed without opinion, we review the IJ’s decision as the final
agency determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008).
We review an adverse credibility determination “under the substantial
evidence standard,” Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018), and
“the administrative findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary,” 8 U.S.C.
§ 1252(b)(4)(B). “Considering the totality of the circumstances, and all relevant
factors, a trier of fact may base a credibility determination on the demeanor,
candor, or responsiveness of the applicant . . . , the inherent plausibility of the
applicant’s . . . account, the consistency between the applicant’s . . . written and
oral statements (whenever made and whether or not under oath, and considering
3 the circumstances under which the statements were made), the internal
consistency of each such statement, . . . and any inaccuracies or falsehoods in such
statements, without regard to whether an inconsistency, inaccuracy, or falsehood
goes to the heart of the applicant’s claim, or any other relevant factor.” 8 U.S.C.
§ 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility determination unless, from
the totality of the circumstances, it is plain that no reasonable fact-finder could
make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162,
167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d at 76. Hossain alleged that he was
attacked multiple times by political rivals because of his membership in the
Bangladesh Nationalist Party. Substantial evidence supports the IJ’s adverse
credibility determination.
As an initial matter, the IJ did not err in relying on the record of Hossain’s
credible fear interview. A credible fear interview warrants “close examination”
because it may “be perceived as coercive” by the alien or fail to “elicit all of the
details supporting an asylum claim.” Ming Zhang v. Holder, 585 F.3d 715, 724–25
(2d Cir. 2009). Nevertheless, “[w]here the record of a credible fear interview
displays the hallmarks of reliability, it appropriately can be considered in
assessing an alien’s credibility.” Id. at 725. “Hallmarks of reliability” include
4 whether the interview is memorialized in a typewritten record of questions and
answers, whether the record demonstrates that the applicant understood the
questions and reflects questions about past harm or fear of future harm, and
whether the interview was conducted with an interpreter. Id. The IJ correctly
observed that those hallmarks of reliability were present here. A Bengali
interpreter was used (and Hossain listed Bengali on his asylum application as his
native language); the interviewer asked Hossain questions designed to elicit an
asylum claim; the questions and answers were memorialized in a typewritten
document; and at no point did Hossain object to the interpreter or demonstrate
difficulty understanding the interviewer’s questions.
The IJ reasonably relied on inconsistencies in Hossain’s statements at
various stages of the proceedings. See 8 U.S.C. § 1158(b)(1)(B)(iii). First, Hossain
testified inconsistently about how he injured his leg, initially claiming he was run
over by a car and later stating that he was hit by a Molotov cocktail. Hossain
sought to explain this inconsistency by stating that he had avoided disclosing the
Molotov cocktail attack because he was told it would be perceived as violent.
However, the IJ was not required to accept Hossain’s explanation that he had
feared disclosing the Molotov cocktail attack; Hossain had alluded to a Molotov
5 cocktail in his credible fear interview and included a later Molotov cocktail attack
in his application. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A
petitioner must do more than offer a plausible explanation for his inconsistent
statements to secure relief; he must demonstrate that a reasonable fact-finder
would be compelled to credit his testimony.” (internal quotation marks omitted)).
Second, the IJ reasonably relied on Hossain’s inconsistent statements about
how many times he was physically attacked. See 8 U.S.C. § 1158(b)(1)(B)(iii). At
his credible fear interview, Hossain stated that he was physically hurt “three to
four times,” and he went on to describe three physical attacks in the interview and
on his asylum application. However, Hossain testified at his hearing that he was
attacked only twice.
Third, Hossain testified that he was assaulted with hockey sticks in April
2013, but he wrote on his asylum application that this attack took place in July
2013. The IJ reasonably relied on this minor inconsistency about the attacks in
combination with the other inconsistencies. See Xiu Xia Lin, 534 F.3d at 167
(“Even where an IJ relies on discrepancies or lacunae that, if taken separately,
concern matters collateral or ancillary to the claim, the cumulative effect may
nevertheless be deemed consequential by the fact-finder.” (alterations and internal
6 quotation marks omitted)).
In sum, substantial evidence supports the adverse credibility determination
given the multiple inconsistencies among Hossain’s written and oral statements.
See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167; see also Likai Gao v. Barr,
968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven a single inconsistency might preclude
an alien from showing that an IJ was compelled to find him credible. Multiple
inconsistencies would so preclude even more forcefully.”). The adverse
credibility determination is dispositive of asylum, withholding of removal, and
CAT relief because all three forms of relief were based on the same factual
predicate. See Hong Fei Gao, 891 F.3d at 76 (“Where the same factual predicate
underlies a petitioner’s claims for asylum, withholding of removal, and protection
under the CAT, an adverse credibility determination forecloses all three forms of
relief.”).
For the foregoing reasons, the petition for review is DENIED. All pending
motions and applications are DENIED and stays VACATED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court