22-6197 Hossen v. Garland BIA Gordon, IJ A215 660 840
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 3rd day of May, two thousand twenty- four.
PRESENT: RICHARD C. WESLEY, JOSEPH F. BIANCO, ALISON J. NATHAN, Circuit Judges. _____________________________________
MD FORHAD HOSSEN, Petitioner,
v. 22-6197 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: Xiaotao Wang, Esq., Law Office of Xiaotao Wang, P.C., New York, NY.
FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant Attorney General; M. Jocelyn Lopez Wright, Senior Litigation Counsel; Margot P. Kniffin, 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 Md Forhad Hossen, a native and citizen of Bangladesh, seeks
review of a March 24, 2022 decision of the BIA, affirming a December 30, 2019
decision of an Immigration Judge (“IJ”), which denied his application for asylum,
withholding of removal, and relief under the Convention Against Torture
(“CAT”). In re Md Forhad Hossen, No. A215 660 840 (B.I.A. Mar. 24, 2022 ), aff’g
No. A215 660 840 (Immig. Ct. N.Y. City Dec. 30, 2019). We assume the parties’
familiarity with the underlying facts and procedural history.
Under the circumstances, we have reviewed both the BIA’s and the IJ’s
decisions “for the sake of completeness.” Wangchuck v. Dep’t of Homeland Sec., 448
F.3d 524, 528 (2d Cir. 2006). We review an adverse credibility determination
2 “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 or witness, the inherent plausibility of the
applicant’s or witness’s account, the consistency between the applicant’s or
witness’s written and oral statements (whenever made and whether or not under
oath, and considering the circumstances under which the statements were made),
the internal consistency of each such statement, the consistency of such statements
with other evidence of record . . . , 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.” Id.
§ 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.
3 Hossen alleges that he was attacked on multiple occasions by members of
the Awami League on account of his work for Bangladesh’s Liberal Democratic
Party (“LDP”). The agency determined that Hossen was not credible because,
inter alia, he was unable to recall details of his work for the LDP and did not
rehabilitate his inconsistent or implausible testimony with reliable evidence of his
political activities.
Hossen argues that the agency erroneously relied on his lack of knowledge
about the LDP. However, the IJ reasonably based its adverse credibility
determination on Hossen’s inability to provide details about his own alleged
political activities given his testimony that he was an active party member. See 8
U.S.C. § 1158(b)(1)(B)(iii). Hossen joined the LDP in January 2014, and left
Bangladesh in 2018. He stated that he “hung posters, campaigned for party
leaders, attended meetings and rallies and was available at all times to do
whatever task [he] was assigned by [his] party leaders.” CAR at 346. However,
on cross-examination, he could not recall how many posters he put up, where he
got the posters, how many people he recruited to the party, the names of
individuals he recruited, or the last LDP meeting he attended before leaving the
country. See Siewe v. Gonzales, 480 F.3d 160, 169 (2d Cir. 2007) (recognizing that
4 an adverse credibility determination may be based on inherent implausibility if
the finding “is tethered to the evidentiary record” or “record facts . . . viewed in
the light of common sense and ordinary experience”).
Hossen also testified that he last voted in 2008, and when asked why he had
not voted in the most recent election, he stated that he understood “the elections
things less” and was busy farming. CAR at 89-90. Given his professed level of
engagement in the party from 2014 until his departure from Bangladesh, the IJ did
not err in finding his explanations that he was too busy to vote or otherwise
uninterested implausible. See Siewe, 480 F.3d at 169. Hossen’s later explanation
to the to the BIA—that he did not vote because the LDP boycotted the 2014 national
elections—was not compelling because it is inconsistent with the explanation he
offered to the IJ. 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.” (quotation marks omitted)). Hossen’s basic inability to
articulate the details of his political activity that are central to his claim to asylum,
or to adequately explain the reason for these omissions, provided substantial
support for the agency’s adverse credibility determination. See Hong Fei Gao, 891
5 F.3d at 79.
Finally, Hossen has abandoned any claim that the agency erred in finding
that he failed to rehabilitate his testimony with reliable corroborating evidence.
The agency may rely on the lack of reliable corroboration where an applicant’s
credibility is already in question. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
Cir. 2007) (“An applicant’s failure to corroborate his or her testimony may bear on
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22-6197 Hossen v. Garland BIA Gordon, IJ A215 660 840
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 3rd day of May, two thousand twenty- four.
PRESENT: RICHARD C. WESLEY, JOSEPH F. BIANCO, ALISON J. NATHAN, Circuit Judges. _____________________________________
MD FORHAD HOSSEN, Petitioner,
v. 22-6197 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: Xiaotao Wang, Esq., Law Office of Xiaotao Wang, P.C., New York, NY.
FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant Attorney General; M. Jocelyn Lopez Wright, Senior Litigation Counsel; Margot P. Kniffin, 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 Md Forhad Hossen, a native and citizen of Bangladesh, seeks
review of a March 24, 2022 decision of the BIA, affirming a December 30, 2019
decision of an Immigration Judge (“IJ”), which denied his application for asylum,
withholding of removal, and relief under the Convention Against Torture
(“CAT”). In re Md Forhad Hossen, No. A215 660 840 (B.I.A. Mar. 24, 2022 ), aff’g
No. A215 660 840 (Immig. Ct. N.Y. City Dec. 30, 2019). We assume the parties’
familiarity with the underlying facts and procedural history.
Under the circumstances, we have reviewed both the BIA’s and the IJ’s
decisions “for the sake of completeness.” Wangchuck v. Dep’t of Homeland Sec., 448
F.3d 524, 528 (2d Cir. 2006). We review an adverse credibility determination
2 “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 or witness, the inherent plausibility of the
applicant’s or witness’s account, the consistency between the applicant’s or
witness’s written and oral statements (whenever made and whether or not under
oath, and considering the circumstances under which the statements were made),
the internal consistency of each such statement, the consistency of such statements
with other evidence of record . . . , 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.” Id.
§ 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.
3 Hossen alleges that he was attacked on multiple occasions by members of
the Awami League on account of his work for Bangladesh’s Liberal Democratic
Party (“LDP”). The agency determined that Hossen was not credible because,
inter alia, he was unable to recall details of his work for the LDP and did not
rehabilitate his inconsistent or implausible testimony with reliable evidence of his
political activities.
Hossen argues that the agency erroneously relied on his lack of knowledge
about the LDP. However, the IJ reasonably based its adverse credibility
determination on Hossen’s inability to provide details about his own alleged
political activities given his testimony that he was an active party member. See 8
U.S.C. § 1158(b)(1)(B)(iii). Hossen joined the LDP in January 2014, and left
Bangladesh in 2018. He stated that he “hung posters, campaigned for party
leaders, attended meetings and rallies and was available at all times to do
whatever task [he] was assigned by [his] party leaders.” CAR at 346. However,
on cross-examination, he could not recall how many posters he put up, where he
got the posters, how many people he recruited to the party, the names of
individuals he recruited, or the last LDP meeting he attended before leaving the
country. See Siewe v. Gonzales, 480 F.3d 160, 169 (2d Cir. 2007) (recognizing that
4 an adverse credibility determination may be based on inherent implausibility if
the finding “is tethered to the evidentiary record” or “record facts . . . viewed in
the light of common sense and ordinary experience”).
Hossen also testified that he last voted in 2008, and when asked why he had
not voted in the most recent election, he stated that he understood “the elections
things less” and was busy farming. CAR at 89-90. Given his professed level of
engagement in the party from 2014 until his departure from Bangladesh, the IJ did
not err in finding his explanations that he was too busy to vote or otherwise
uninterested implausible. See Siewe, 480 F.3d at 169. Hossen’s later explanation
to the to the BIA—that he did not vote because the LDP boycotted the 2014 national
elections—was not compelling because it is inconsistent with the explanation he
offered to the IJ. 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.” (quotation marks omitted)). Hossen’s basic inability to
articulate the details of his political activity that are central to his claim to asylum,
or to adequately explain the reason for these omissions, provided substantial
support for the agency’s adverse credibility determination. See Hong Fei Gao, 891
5 F.3d at 79.
Finally, Hossen has abandoned any claim that the agency erred in finding
that he failed to rehabilitate his testimony with reliable corroborating evidence.
The agency may rely on the lack of reliable corroboration where an applicant’s
credibility is already in question. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
Cir. 2007) (“An applicant’s failure to corroborate his or her testimony may bear on
credibility, because the absence of corroboration in general makes an applicant
unable to rehabilitate testimony that has already been called into question.”).
Although Hossen states that he sufficiently corroborated his claim, he does not cite
specific documents, explain why the IJ should have given the documents weight,
or explain how the documents rehabilitated his inability to describe his activities
for the LDP. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir.
2005) (finding claim abandoned where petitioner “devote[d] only a single
conclusory sentence to the argument”). In any event, the agency reasonably
determined that Hossen’s documentary evidence warranted minimal weight and
failed to rehabilitate his claim.
In sum, substantial evidence supports the adverse credibility determination
given Hossen’s inability to recall details of his work for the LDP, his implausible
6 and inconsistent statements about why he did not vote, and the lack of reliable
corroboration of his political activities. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
Lin, 534 F.3d at 167; Biao Yang, 496 F.3d at 273; Siewe, 480 F.3d at 168–69. 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.
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