Hossain v. Garland

Opinion

22-6298 Hossain v. Garland BIA

Poczter, IJ

A206 250 253

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 8th day of January, two thousand 4 twenty-five. 5 6 PRESENT: 7 SUSAN L. CARNEY, 8 RICHARD J. SULLIVAN, 9 MYRNA PÉREZ, 10 Circuit Judges. 11 _____________________________________ 12 13 ARIF HOSSAIN, 14 Petitioner, 15 16 v. 22-6298 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Khagendra Gharti-Chhetry, New York, NY.

1 FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant 2 Attorney General; Kohsei Ugumori, Senior 3 Litigation Counsel; Krishana N. Patel, Trial 4 Attorney, Office of Immigration Litigation, 5 United States Department of Justice, 6 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 Arif Hossain, a native and citizen of Bangladesh, seeks review of 11 a May 25, 2022 decision of the BIA affirming a November 27, 2018 decision of an 12 Immigration Judge (“IJ”) denying his application for asylum, withholding of 13 removal, and relief under the Convention Against Torture (“CAT”). In re Arif 14 Hossain, No. A206 250 253 (B.I.A. May 25, 2022), aff’g No. A206 250 253 (Immigr. 15 Ct. N.Y.C. Nov. 27, 2018). We assume the parties’ familiarity with the underlying 16 facts and procedural history. 17 We review the IJ’s decision as supplemented by the BIA. See Yan Chen v. 18 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We address only the adverse credibility 19 determination because Hossain has failed to exhaust some issues he raises here. 20 On appeal to the BIA, he did not challenge the reliability of the record of the 21 credible fear interview, argue that there was objective evidence sufficient to

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1 demonstrate a well-founded fear of persecution even absent credible testimony, or 2 raise his CAT claim. Thus, the BIA did not err in finding the issues forfeited, and 3 the issues are unexhausted and not properly before us. See Ud Din v. Garland, 72 4 F.4th 411, 419–20 & n.2 (2d Cir. 2023) (re-confirming that issue exhaustion is 5 mandatory). 6 We review adverse credibility determinations “under the substantial 7 evidence standard.” Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). 8 “[T]he administrative findings of fact are conclusive unless any reasonable 9 adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. 10 § 1252(b)(4)(B). The credibility determination provision of the asylum statute 11 reads:

12 Considering the totality of the circumstances, and all relevant factors, 13 a trier of fact may base a credibility determination on . . . the 14 consistency between the applicant’s or witness’s written and oral 15 statements (whenever made and whether or not under oath, and 16 considering the circumstances under which the statements were 17 made), the internal consistency of each such statement, [and] the 18 consistency of such statements with other evidence of 19 record . . . without regard to whether an inconsistency, inaccuracy, or 20 falsehood goes to the heart of the applicant’s claim, or any other 21 relevant factor.

22 Id. § 1158(b)(1)(B)(iii).

1 “We defer . . . to an IJ’s credibility determination unless, from the totality of 2 the circumstances, it is plain that no reasonable fact-finder could make such an 3 adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 4 2008); accord Hong Fei Gao, 891 F.3d at 76. Substantial evidence supports the 5 agency’s determination that Hossain was not credible as to his claim that he was 6 assaulted on multiple occasions by members of an opposing political party. 7 The agency reasonably relied on inconsistencies between Hossain’s credible 8 fear interview, application, and testimony regarding the number of times he was 9 attacked. See 8 U.S.C. § 1158(b)(1)(B)(iii). At the interview conducted 10 approximately two months after Hossain entered the United States, he was asked 11 how many times he was harmed; in response, he indicated “[t]wo times,” then said 12 the first time was May 5, 2013, and the second time was May 15, 2013. Certified 13 Admin. Rec. at 766. But he identified two additional attacks in his application— 14 one in July 2011, and another in February 2012, in which Awami League members 15 cut him with a knife. And he testified to an additional 2009 incident, in which 16 Awami League members threatened to kill him if he did not stop putting up 17 posters.

1 When confronted with these inconsistencies, Hossain explained that he was 2 nervous during his credible fear interview and focused on the most recent events 3 that made him leave Bangladesh. However, “an alien’s mere recitation that he 4 was nervous . . . will not automatically prevent the IJ or BIA from relying [o]n 5 statements . . . when making adverse credibility determination.” Yun-Zui Guan 6 v. Gonzales, 432 F.3d 391, 397 n.6 (2d Cir. 2005). Nor was the IJ compelled to credit 7 Hossain’s explanation that he only spoke about the events that caused him to leave 8 Bangladesh because he was asked how many times he was attacked. The record 9 reflects that Hossain was repeatedly asked if he wanted to add more information 10 about his claim; given this questioning, it makes little sense that he would fail to 11 mention the most severe attack in 2012. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d 12 Cir. 2005) (“A petitioner must do more than offer a plausible explanation for his 13 inconsistent statements to secure relief; he must demonstrate that a reasonable 14 fact-finder would be compelled to credit his testimony.” (quotation marks 15 omitted)); see also Cheng Tong Wang v. Gonzales, 449 F.3d 451, 453 (2d Cir. 2006) 16 (“[O]missions that go to a heart of an applicant’s claim can form the basis for an 17 adverse credibility determination.”). While Hossain was “not required to give a 18 detailed and specific account of the bases for [his] claims” in his credible fear

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1 interview, Ming Zhang v. Holder, 585 F.3d 715, 724 (2d Cir. 2009) (quotation marks 2 omitted), the first two times he was attacked are the kind of facts “that a credible 3 petitioner would reasonably have been expected to disclose under the relevant 4 circumstances,” Hong Fei Gao, 891 F.3d at 78–79, and Hossain confirmed he had 5 understood the purpose of the credible fear interview was to provide all the 6 reasons he feared returning to Bangladesh. 7 The inconsistencies, which call into question the alleged assaults that were 8 the basis of the claim, provide substantial evidence for the agency’s credibility 9 determination. See Singh v. Garland, 6 F.4th 418, 431 (2d Cir. 2021) (“The more 10 serious the inconsistency—i.e., the greater the importance of the fact upon which 11 inconsistency is found for the success of the petition and the more likely it is that 12 a truthful account would not have included the inconsistency—the more 13 substantial that evidence is in casting doubt on the petitioner’s credibility.”); Likai 14 Gao v. Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven a single inconsistency 15 might preclude an alien from showing that an IJ was compelled to find him 16 credible.”); Xiu Xia Lin, 534 F.3d at 166 (“Where the IJ’s adverse credibility finding 17 is based on specific examples . . . of inconsistent statements or contradictory 18 evidence, a reviewing court will generally not be able to conclude that a reasonable

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1 adjudicator was compelled to find otherwise.” (quotation marks omitted)). The 2 adverse credibility determination is dispositive of asylum and withholding of 3 removal because both forms of relief are based on the same factual predicate. See 4 Hong Fei Gao, 891 F.3d at 76. 5 For the foregoing reasons, the petition for review is DENIED.

6 FOR THE COURT: 7 Catherine O’Hagan Wolfe, 8 Clerk of Court