17-4134 Islam v. Garland BIA Kolbe, IJ A206 912 018 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.
1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 17th day of March, two thousand twenty-one. 5 6 PRESENT: 7 BARRINGTON D. PARKER, 8 REENA RAGGI, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 JAHIRUL ISLAM, 14 Petitioner, 15 16 v. 17-4134 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL,* 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Khagendra Gharti-Chhetry, 24 Chhetry & Associates, P.C., New 25 York, NY. 26 27 FOR RESPONDENT: Brian Boyton, Acting Assistant 28 Attorney General; John S. Hogan, 29 Assistant Director; Lindsay C. 30 Dunn, Trial Attorney, Office of
* The Clerk of the Court is respectfully directed to amend the caption as set forth above. 1 Immigration Litigation, U.S. 2 Department of Justice, Washington, 3 DC. 4 5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Jahirul Islam, a native and citizen of
10 Bangladesh, seeks review of a November 30, 2017, decision
11 of the BIA affirming a March 23, 2017, decision of an
12 Immigration Judge (“IJ”) denying his application for
13 asylum, withholding of removal, and relief under the
14 Convention Against Torture (“CAT”). In re Jahirul Islam,
15 No. A206 912 018 (B.I.A. Nov. 30, 2017), aff’g No. A206 912
16 018 (Immig. Ct. N.Y. City Mar. 23, 2017). We assume the
17 parties’ familiarity with the underlying facts and
18 procedural history.
19 Under the circumstances of this case, we have reviewed
20 both the IJ’s and the BIA’s opinions “for the sake of
21 completeness.” Wangchuck v. Dep’t of Homeland Security,
22 448 F.3d 524, 528 (2d Cir. 2006). The applicable standards
23 of review are well established. See 8 U.S.C.
24 § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76
2 1 (2d Cir. 2018). “Considering the totality of the
2 circumstances, and all relevant factors, a trier of fact
3 may base a credibility determination on . . . the inherent
4 plausibility of the applicant’s or witness’s account, the
5 consistency between the applicant’s or witness’s written
6 and oral statements . . . [and] the internal consistency of
7 each such statement . . . without regard to whether an
8 inconsistency, inaccuracy, or falsehood goes to the heart
9 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii);
10 see Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163-64 (2d Cir.
11 2008). Substantial evidence supports the agency’s
12 determination that Islam was not credible as to his claim
13 that members of the Awami League beat him on account of his
14 position as public secretary in a local chapter of the
15 Bangladesh Nationalist Party (“BNP”).
16 It was reasonable for the agency to question Islam’s
17 assertion that he held the position of public secretary in
18 his local chapter of the BNP because he could not describe
19 the party’s platform in any detail. See 8 U.S.C.
20 § 1158(b)(1)(B)(iii); see also Jin Shui Qiu v. Ashcroft,
21 329 F.3d 140, 152 (2d Cir. 2003) (“Where an applicant gives
22 very spare testimony, . . . the IJ . . . may fairly wonder
3 1 whether the testimony is fabricated.”), overruled in part
2 on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice,
3 494 F.3d 296, 305 (2d Cir. 2007). Although the agency may
4 err in basing a credibility determination on an applicant’s
5 lack of doctrinal knowledge, this is an “instance[] in
6 which the nature of an individual applicant’s account . . .
7 render[s] his lack of a certain degree of doctrinal
8 knowledge suspect and . . . therefore provide[s]
9 substantial evidence in support of an adverse credibility
10 finding.” Rizal v. Gonzales, 442 F.3d 84, 90 (2d Cir.
11 2006). Because Islam claimed to hold a position
12 responsible for promoting the BNP publicly, the agency did
13 not err in questioning his credibility based on his lack of
14 knowledge regarding the party’s ideology. See id.
15 The agency also reasonably relied on Islam’s
16 conflicting evidence regarding the injuries he purportedly
17 suffered when Awami League members attacked him in 2013.
18 See 8 U.S.C. § 1158(b)(1)(B)(iii). Islam testified that he
19 suffered a cut in his mouth that bled but was “not that
20 big” and that the rest of his body “was injured” but was
21 not “bleeding or anything.” But a letter he submitted from
22 the hospital, issued three years after the attack, stated
4 1 inconsistently that the injury to Islam’s mouth was
2 “serious” and that Islam had lacerations elsewhere on his
3 body. Further, given that Islam could not describe with
4 any specificity the injuries to his body, other than the
5 cut in his mouth that was “not that big,” the agency did
6 not err in questioning the plausibility of his claim that
7 he required a two-day hospitalization. See 8 U.S.C.
8 § 1158(b)(1)(B)(iii); see also Wensheng Yan v. Mukasey, 509
9 F.3d 63, 66–68 (2d Cir. 2007) (recognizing that adverse
10 credibility determination may be based on inherent
11 implausibility in applicant’s story if the “finding is
12 tethered to record evidence” or based on common sense); see
13 also Jin Shui Qiu, 329 F.3d at 152.
14 Having questioned Islam’s credibility, the agency
15 reasonably relied further on his failure to rehabilitate
16 his testimony with reliable corroborating evidence. “An
17 applicant’s failure to corroborate his or her testimony may
18 bear on credibility, because the absence of corroboration
19 in general makes an applicant unable to rehabilitate
20 testimony that has already been called into question.”
21 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).
22 The agency did not err in declining to credit affidavits
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17-4134 Islam v. Garland BIA Kolbe, IJ A206 912 018 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.
1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 17th day of March, two thousand twenty-one. 5 6 PRESENT: 7 BARRINGTON D. PARKER, 8 REENA RAGGI, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 JAHIRUL ISLAM, 14 Petitioner, 15 16 v. 17-4134 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL,* 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Khagendra Gharti-Chhetry, 24 Chhetry & Associates, P.C., New 25 York, NY. 26 27 FOR RESPONDENT: Brian Boyton, Acting Assistant 28 Attorney General; John S. Hogan, 29 Assistant Director; Lindsay C. 30 Dunn, Trial Attorney, Office of
* The Clerk of the Court is respectfully directed to amend the caption as set forth above. 1 Immigration Litigation, U.S. 2 Department of Justice, Washington, 3 DC. 4 5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Jahirul Islam, a native and citizen of
10 Bangladesh, seeks review of a November 30, 2017, decision
11 of the BIA affirming a March 23, 2017, decision of an
12 Immigration Judge (“IJ”) denying his application for
13 asylum, withholding of removal, and relief under the
14 Convention Against Torture (“CAT”). In re Jahirul Islam,
15 No. A206 912 018 (B.I.A. Nov. 30, 2017), aff’g No. A206 912
16 018 (Immig. Ct. N.Y. City Mar. 23, 2017). We assume the
17 parties’ familiarity with the underlying facts and
18 procedural history.
19 Under the circumstances of this case, we have reviewed
20 both the IJ’s and the BIA’s opinions “for the sake of
21 completeness.” Wangchuck v. Dep’t of Homeland Security,
22 448 F.3d 524, 528 (2d Cir. 2006). The applicable standards
23 of review are well established. See 8 U.S.C.
24 § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76
2 1 (2d Cir. 2018). “Considering the totality of the
2 circumstances, and all relevant factors, a trier of fact
3 may base a credibility determination on . . . the inherent
4 plausibility of the applicant’s or witness’s account, the
5 consistency between the applicant’s or witness’s written
6 and oral statements . . . [and] the internal consistency of
7 each such statement . . . without regard to whether an
8 inconsistency, inaccuracy, or falsehood goes to the heart
9 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii);
10 see Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163-64 (2d Cir.
11 2008). Substantial evidence supports the agency’s
12 determination that Islam was not credible as to his claim
13 that members of the Awami League beat him on account of his
14 position as public secretary in a local chapter of the
15 Bangladesh Nationalist Party (“BNP”).
16 It was reasonable for the agency to question Islam’s
17 assertion that he held the position of public secretary in
18 his local chapter of the BNP because he could not describe
19 the party’s platform in any detail. See 8 U.S.C.
20 § 1158(b)(1)(B)(iii); see also Jin Shui Qiu v. Ashcroft,
21 329 F.3d 140, 152 (2d Cir. 2003) (“Where an applicant gives
22 very spare testimony, . . . the IJ . . . may fairly wonder
3 1 whether the testimony is fabricated.”), overruled in part
2 on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice,
3 494 F.3d 296, 305 (2d Cir. 2007). Although the agency may
4 err in basing a credibility determination on an applicant’s
5 lack of doctrinal knowledge, this is an “instance[] in
6 which the nature of an individual applicant’s account . . .
7 render[s] his lack of a certain degree of doctrinal
8 knowledge suspect and . . . therefore provide[s]
9 substantial evidence in support of an adverse credibility
10 finding.” Rizal v. Gonzales, 442 F.3d 84, 90 (2d Cir.
11 2006). Because Islam claimed to hold a position
12 responsible for promoting the BNP publicly, the agency did
13 not err in questioning his credibility based on his lack of
14 knowledge regarding the party’s ideology. See id.
15 The agency also reasonably relied on Islam’s
16 conflicting evidence regarding the injuries he purportedly
17 suffered when Awami League members attacked him in 2013.
18 See 8 U.S.C. § 1158(b)(1)(B)(iii). Islam testified that he
19 suffered a cut in his mouth that bled but was “not that
20 big” and that the rest of his body “was injured” but was
21 not “bleeding or anything.” But a letter he submitted from
22 the hospital, issued three years after the attack, stated
4 1 inconsistently that the injury to Islam’s mouth was
2 “serious” and that Islam had lacerations elsewhere on his
3 body. Further, given that Islam could not describe with
4 any specificity the injuries to his body, other than the
5 cut in his mouth that was “not that big,” the agency did
6 not err in questioning the plausibility of his claim that
7 he required a two-day hospitalization. See 8 U.S.C.
8 § 1158(b)(1)(B)(iii); see also Wensheng Yan v. Mukasey, 509
9 F.3d 63, 66–68 (2d Cir. 2007) (recognizing that adverse
10 credibility determination may be based on inherent
11 implausibility in applicant’s story if the “finding is
12 tethered to record evidence” or based on common sense); see
13 also Jin Shui Qiu, 329 F.3d at 152.
14 Having questioned Islam’s credibility, the agency
15 reasonably relied further on his failure to rehabilitate
16 his testimony with reliable corroborating evidence. “An
17 applicant’s failure to corroborate his or her testimony may
18 bear on credibility, because the absence of corroboration
19 in general makes an applicant unable to rehabilitate
20 testimony that has already been called into question.”
21 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).
22 The agency did not err in declining to credit affidavits
5 1 Islam submitted because many of the authors were interested
2 witnesses who were unavailable for cross-examination. See
3 Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) (“We
4 generally defer to the agency’s evaluation of the weight to
5 be afforded an applicant’s documentary evidence.”); see
6 also In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215
7 (B.I.A. 2010) (finding that letters from alien’s friends
8 and family were insufficient to provide substantial support
9 for alien’s claims because they were from interested
10 witnesses not subject to cross-examination), overruled on
11 other grounds by Hui Lin Huang v. Holder, 677 F.3d 130,
12 133–38 (2d Cir. 2012). The agency also reasonably noted
13 the absence of contemporaneous medical records detailing
14 Islam’s two-day hospitalization, which was particularly
15 noticeable given the lack of detail in Islam’s testimony
16 and his doctor’s letter regarding the type of injuries
17 suffered and why the injuries required hospitalization.
18 Given Islam’s lack of doctrinal knowledge, conflicting
19 evidence, and lack of reliable rehabilitating
20 corroboration, we conclude the agency’s adverse credibility
21 determination is supported by substantial evidence. See
22 8 U.S.C. § 1158(b)(1)(B)(iii). That finding is dispositive
6 1 of asylum, withholding of removal, and CAT relief because
2 all three claims were based on the same factual predicate.
3 See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
4 For the foregoing reasons, the petition for review is
5 DENIED. All pending motions and applications are denied
6 and stays vacated.
7 FOR THE COURT: 8 Catherine O’Hagan Wolfe 9 Clerk of Court