24-1812 Hussain v. Bondi BIA Reid, IJ A246 913 619/620/621
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 20th day of June, two thousand twenty- five.
PRESENT: RICHARD C. WESLEY, MICHAEL H. PARK, EUNICE C. LEE, Circuit Judges. _____________________________________
MNOWAR HUSSAIN, MST FARHANA AKTHER, A.S., Petitioners,
v. 24-1812 NAC PAMELA BONDI, UNITED STATES ATTORNEY GENERAL, Respondent. ∗
∗ The Clerk of Court is respectfully directed to amend the caption, including to
abbreviate the minor petitioner’s name, as set forth above. _____________________________________
FOR PETITIONERS: Xiaotao Wang, Law Office of Xiaotao Wang, P.C., New York, NY.
FOR RESPONDENT: Yaakov M. Roth, Acting Assistant Attorney General; Vanessa M. Otero, Senior Litigation Counsel; Duncan T. Fulton, 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.
Petitioners Mnowar Hussain, Mst Farhana Akther, and their minor
daughter, natives and citizens of Bangladesh, seek review of a June 6, 2024 decision
of the BIA affirming a September 11, 2023 decision of an Immigration Judge (“IJ”)
denying Hussain’s application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Mnowar Hussain, et al., Nos.
A 246 913 619/620/621 (B.I.A. June 6, 2024), aff’g Nos. A 246 913 619/620/621
(Immigr. Ct. N.Y.C. Sept. 11, 2023). We assume the parties’ familiarity with the
underlying facts and procedural history.
2 We have reviewed both the IJ’s and BIA’s decisions “for the sake of
completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
2006). We review questions of law de novo and factual findings, including
adverse credibility determinations, for substantial evidence. Hong Fei Gao v.
Sessions, 891 F.3d 67, 76 (2d Cir. 2018). “[T]he 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 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.”
3 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891
F.3d at 76.
As an initial matter, Hussain has abandoned any challenge to the agency’s
reliance on inconsistencies regarding the name of the person who helped him after
a December 2021 attack and which attack involved a knife by not addressing these
findings in his brief. “We consider abandoned any claims not adequately
presented in an appellant’s brief, and an appellant’s failure to make legal or factual
arguments constitutes abandonment.” Debique v. Garland, 58 F.4th 676, 684 (2d
Cir. 2023) (quotation marks omitted). Although Hussain asserted before the BIA
and in his brief here that he is presenting new evidence to the BIA that would
resolve these inconsistencies, he has not presented such evidence or filed a motion.
Regardless, our review is limited to the administrative record. See 8 U.S.C.
§ 1252(b)(4)(A) (providing that “the court of appeals shall decide the petition only
on the administrative record on which the order of removal is based”).
In any event, substantial evidence supports the agency’s determination that
Hussain did not credibly claim that members of the Awami League (“AL”)
attacked him multiple times due to his membership in the Liberal Democratic
Party (“LDP”). First, the agency reasonably rejected Hussain’s explanation that
4 he did not know the real name of his friend who helped him after the December
2021 attack, particularly because that friend’s affidavit stated that he and Hussain
had known each other “for a long time.” Certified Admin. Record at 541-43.
Second, Hussain’s wife stated that he was attacked with a knife during a June 2022
attack, which contradicted Hussain’s statement and supporting evidence that the
knife was used in an October 2022 attack. Neither Hussain nor his wife offered
any explanation for this inconsistency. Third, Hussain testified that his left knee
was injured in the attack and produced a photograph purporting to show a scar
on his left knee, but his and his father’s written statements and his hospital records
indicated that this injury was to his right knee. The agency was not compelled to
credit Hussain’s conflicting explanations that the written statements were
mistaken, that both knees sustained injuries, and that his “mind [wa]s not
functioning well” and he was not “able to comprehend everything properly.” Id.
at 174; 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.” (cleaned up)); see also Biao Yang v. Gonzales, 496 F.3d 268, 272
(2d Cir. 2007) (upholding adverse credibility determination when applicant
5 “appeared to be simply making up testimony when confronted by
inconsistencies” (quotation marks omitted)). And contrary to Hussain’s
explanation, there is no evidence that both knees were injured. Certified Admin.
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24-1812 Hussain v. Bondi BIA Reid, IJ A246 913 619/620/621
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 20th day of June, two thousand twenty- five.
PRESENT: RICHARD C. WESLEY, MICHAEL H. PARK, EUNICE C. LEE, Circuit Judges. _____________________________________
MNOWAR HUSSAIN, MST FARHANA AKTHER, A.S., Petitioners,
v. 24-1812 NAC PAMELA BONDI, UNITED STATES ATTORNEY GENERAL, Respondent. ∗
∗ The Clerk of Court is respectfully directed to amend the caption, including to
abbreviate the minor petitioner’s name, as set forth above. _____________________________________
FOR PETITIONERS: Xiaotao Wang, Law Office of Xiaotao Wang, P.C., New York, NY.
FOR RESPONDENT: Yaakov M. Roth, Acting Assistant Attorney General; Vanessa M. Otero, Senior Litigation Counsel; Duncan T. Fulton, 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.
Petitioners Mnowar Hussain, Mst Farhana Akther, and their minor
daughter, natives and citizens of Bangladesh, seek review of a June 6, 2024 decision
of the BIA affirming a September 11, 2023 decision of an Immigration Judge (“IJ”)
denying Hussain’s application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Mnowar Hussain, et al., Nos.
A 246 913 619/620/621 (B.I.A. June 6, 2024), aff’g Nos. A 246 913 619/620/621
(Immigr. Ct. N.Y.C. Sept. 11, 2023). We assume the parties’ familiarity with the
underlying facts and procedural history.
2 We have reviewed both the IJ’s and BIA’s decisions “for the sake of
completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
2006). We review questions of law de novo and factual findings, including
adverse credibility determinations, for substantial evidence. Hong Fei Gao v.
Sessions, 891 F.3d 67, 76 (2d Cir. 2018). “[T]he 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 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.”
3 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891
F.3d at 76.
As an initial matter, Hussain has abandoned any challenge to the agency’s
reliance on inconsistencies regarding the name of the person who helped him after
a December 2021 attack and which attack involved a knife by not addressing these
findings in his brief. “We consider abandoned any claims not adequately
presented in an appellant’s brief, and an appellant’s failure to make legal or factual
arguments constitutes abandonment.” Debique v. Garland, 58 F.4th 676, 684 (2d
Cir. 2023) (quotation marks omitted). Although Hussain asserted before the BIA
and in his brief here that he is presenting new evidence to the BIA that would
resolve these inconsistencies, he has not presented such evidence or filed a motion.
Regardless, our review is limited to the administrative record. See 8 U.S.C.
§ 1252(b)(4)(A) (providing that “the court of appeals shall decide the petition only
on the administrative record on which the order of removal is based”).
In any event, substantial evidence supports the agency’s determination that
Hussain did not credibly claim that members of the Awami League (“AL”)
attacked him multiple times due to his membership in the Liberal Democratic
Party (“LDP”). First, the agency reasonably rejected Hussain’s explanation that
4 he did not know the real name of his friend who helped him after the December
2021 attack, particularly because that friend’s affidavit stated that he and Hussain
had known each other “for a long time.” Certified Admin. Record at 541-43.
Second, Hussain’s wife stated that he was attacked with a knife during a June 2022
attack, which contradicted Hussain’s statement and supporting evidence that the
knife was used in an October 2022 attack. Neither Hussain nor his wife offered
any explanation for this inconsistency. Third, Hussain testified that his left knee
was injured in the attack and produced a photograph purporting to show a scar
on his left knee, but his and his father’s written statements and his hospital records
indicated that this injury was to his right knee. The agency was not compelled to
credit Hussain’s conflicting explanations that the written statements were
mistaken, that both knees sustained injuries, and that his “mind [wa]s not
functioning well” and he was not “able to comprehend everything properly.” Id.
at 174; 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.” (cleaned up)); see also Biao Yang v. Gonzales, 496 F.3d 268, 272
(2d Cir. 2007) (upholding adverse credibility determination when applicant
5 “appeared to be simply making up testimony when confronted by
inconsistencies” (quotation marks omitted)). And contrary to Hussain’s
explanation, there is no evidence that both knees were injured. Certified Admin.
Record at 472 (hospital records identifying a “[l]aceration on the right knee”).
The agency’s adverse credibility determination is bolstered by the lack of
reliable corroboration. “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.” Biao Yang, 496 F.3d at 273. The agency reasonably gave minimal
weight to affidavits from Hussain’s family members, neighbors, business
associates, and friends. See Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) (“We
generally defer to the agency’s evaluation of the weight to be afforded an
applicant’s documentary evidence.”); see also Likai Gao v. Barr, 968 F.3d 137, 149 (2d
Cir. 2020) (finding that “the IJ acted within her discretion” in giving “little weight”
to affidavits from “interested parties” who were not “available for cross-
examination”). Moreover, as the agency pointed out, the hospital records were
“highly suspicious” because records that were purportedly from different
hospitals contained the same errors: they listed the name of the hospital where the
6 diagnosis should be and gave identical discharge instructions with the same typos.
Certified Admin. Record at 69; cf. Mei Chai Ye v. U.S. Dep’t of Just., 489 F.3d 517,
524 (2d Cir. 2007) (noting that we have “firmly embraced the commonsensical
notion that striking similarities between affidavits are an indication that the
statements are ‘canned’”).
In sum, given the multiple inconsistencies about the incidents of harm that
form the basis of the claim and the absence of reliable corroboration, substantial
evidence supports the agency’s adverse credibility determination. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Likai Gao, 968 F.3d at 145 n.8 (“[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.”); Xiu
Xia Lin, 534 F.3d at 167; Biao Yang, 496 F.3d at 273. This adverse credibility
determination is dispositive of asylum, withholding of removal, and CAT relief
because these forms of relief are based on the same factual predicate—Hussain’s
alleged attacks by AL members because of his LDP activities. See Hong Fei Gao,
891 F.3d at 76; see also Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (“[A] single
false document or a single instance of false testimony may . . . infect the balance of
the alien’s uncorroborated or unauthenticated evidence.”). Thus, we do not reach
7 Hussain’s remaining arguments. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976)
(“As a general rule courts and agencies are not required to make findings on issues
the decision of which is unnecessary to the results they reach.”).
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