Islam v. Barr

Opinion

17-2377 Islam v. Barr BIA Schoppert, IJ A205 306 078 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.

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 23rd day of July, two thousand nineteen.

PRESENT: BARRINGTON D. PARKER, RICHARD C. WESLEY, DEBRA ANN LIVINGSTON, Circuit Judges. _____________________________________

SAIFUL ISLAM, Petitioner,

v. 17-2377 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Salim Sheikh, New York, NY.

FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Linda S. Wernery, Assistant Director; Gregory M. Kelch, 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 Saiful Islam (“Islam”), a native and citizen

of Bangladesh, seeks review of a July 10, 2017 decision of

the BIA affirming a November 30, 2016 decision of an

Immigration Judge (“IJ”) denying Islam’s application for

asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). In re Saiful Islam, No.

A 205 306 078 (B.I.A. July 10, 2017), aff’g No. A 205 306 078

(Immig. Ct. N.Y. City Nov. 30, 2016). We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

Under the circumstances of this case, we have reviewed

both the BIA’s and IJ’s decisions. See Yun-Zui Guan v.

Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable

standards of review are well-established. See 8 U.S.C.

§ 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76

(2d Cir. 2018).

2 The governing REAL ID Act credibility standard provides

as follows:

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 . . . , 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, . . . or any other relevant factor.

8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s

credibility determination unless . . . 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. Here, we conclude

that substantial evidence supports the agency’s adverse

credibility determination.

As an initial matter, the agency did not err in relying

on the credible fear interview when assessing credibility

because the interview record “display[ed] the hallmarks of

reliability.” Ming Zhang v. Holder, 585 F.3d 715, 725 (2d

Cir. 2009). Although Islam argues that any inconsistency was

probably due to the coercive nature of the interview, the

record does not reflect that he was reluctant to reveal

3 information. And his argument that the BIA failed to address

the reliability of the interview record is belied by the BIA’s

statement agreeing with the IJ’s conclusion that the

interview notes were reliable. Accordingly, the agency

reasonably relied on several inconsistencies between Islam’s

statements at the credible fear interview and his hearing

testimony. See 8 U.S.C. § 1158(b)(1)(B)(iii).

First, Islam’s testimony and interview statements were

inconsistent regarding whether Islam was arrested and harmed

by the police in November 2011. The IJ was not required to

credit Islam’s explanation for the inconsistency that he

thought the interviewer was asking about arrests on his way

to the United States because the questions were not asked in

the context of a discussion about Islam’s journey to the

United States; moreover, when asked to identify the next

incident of harm after July 2011, Islam skipped over the

alleged November 2011 arrest to a January 2012 incident. 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

4 to credit his testimony.” (internal quotation marks and

citations omitted)).

Second, Islam’s testimony that he went to police at the

end of 2011 to file a complaint was inconsistent with the

credible fear interview, where he stated that he did not

report threats to the police. Although Islam argues that the

interviewer asked only whether he reported a January 2012

threat to the police, as opposed to threats in 2011, the

interviewer asked several questions about whether Islam

contacted the police after threats in 2011 and 2012, as well

as why he did not report the threats to the police.

Third, Islam gave materially different descriptions of

his work for the Bangladesh Nationalist Party (“BNP”),

stating at the interview that he merely attended events, but

magnifying his role at the hearing by testifying that he was

the organizing secretary and organized the events.

Ramsameachire v. Ashcroft, 357 F.3d 169, 180-81 (2d Cir. 2004)

Finally, Islam’s documentary evidence further undermined

his claim. See 8 U.S.C. § 1158(b)(1)(B)(iii); Biao Yang v.

Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s

failure to corroborate his . . . testimony may bear on

5 credibility, because the absence of corroboration in general

makes an applicant unable to rehabilitate testimony that has

already been called into question”). Islam’s testimony was

inconsistent with his mother’s affidavit regarding whether he

was threatened while in Dhaka. Islam’s statement about when

he became an organizing secretary for the BNP was inconsistent

with his original letter from the party. And Islam’s

testimony was inconsistent with a witness affidavit regarding

whether the witness rescued him from an attack. Furthermore,

the IJ reasonably gave these documents limited weight as the

authors were not available for cross-examination. See Y.C.

v. Holder, 741 F.3d 324, 332, 334 (2d Cir. 2013) (“We

generally defer to the agency’s evaluation of the weight to

be afforded an applicant’s documentary evidence.”); Matter of

H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (BIA 2010),

overruled on other grounds by Hui Lin Huang v. Holder, 677

F.3d 130 (2d Cir. 2012).

Given these multiple inconsistencies, substantial

evidence supports the adverse credibility determination here.

See Xiu Xia Lin, 534 F.3d at 167. Because Islam’s claims

were all based on the same factual predicate, the adverse

6 credibility determination is dispositive of asylum,

withholding of removal, and CAT relief. See Paul v.

Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, any stay of removal

that the Court previously granted in this petition is VACATED,

and any pending motion for a stay of removal in this petition

is DISMISSED as moot. Any pending request for oral argument

in this petition is DENIED in accordance with Federal Rule of

Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34.1(b).

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