Kibria v. Sessions

• Court: Court of Appeals for the Second Circuit
• Decided: June 25, 2018
• Docket: 16-4130
• Status: Unpublished

Opinion

16-4130 Kibria v. Sessions BIA Poczter, IJ A205 634 225 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 25th day of June, two thousand eighteen. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 GERARD E. LYNCH, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 GOLAM KIBRIA, AKA MOHAMED 14 HUSSEIN, 15 Petitioner, 16 17 v. 16-4130 18 NAC 19 JEFFERSON B. SESSIONS III, 20 UNITED STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Thomas V. Massucci, New York, NY. 25 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; Anthony P. 28 Nicastro, Assistant Director; 29 Sheri R. Glaser, Trial Attorney, 30 Office of Immigration Litigation, 31 United States Department of 32 Justice, Washington, DC. 1 UPON DUE CONSIDERATION of this petition for review of a

2 Board of Immigration Appeals (“BIA”) decision, it is hereby

3 ORDERED, ADJUDGED, AND DECREED that the petition for review

4 is DENIED.

5 Petitioner Golam Kibria, a native and citizen of

6 Bangladesh, seeks review of a November 22, 2016, decision

7 of the BIA affirming a March 2, 2016, decision of an

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

9 asylum, withholding of removal, and relief under the

10 Convention Against Torture (“CAT”). In re Golam Kibria, No.

11 A 205 634 225 (B.I.A. Nov. 22, 2016), aff’g No. A 205 634

12 225 (Immig. Ct. N.Y. City Mar. 2, 2016). We assume the

13 parties’ familiarity with the underlying facts and

14 procedural history in this case.

15 Under the circumstances of this case, we have reviewed

16 both the IJ’s and BIA’s decisions “for the sake of

17 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448

18 F.3d 524, 528 (2d Cir. 2006). The applicable standards of

19 review are well established. See 8 U.S.C. § 1252(b)(4)(B);

20 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.

21 2008).

22 The agency may, “[c]onsidering the totality of the

23 circumstances,” base an adverse credibility ruling on the 2 1 “consistency between the applicant’s or witness’s written

2 and oral statements[,] . . . the internal consistency of

3 each such statement, . . . the consistency of such

4 statements with other evidence of record[,] . . . any

5 inaccuracies or falsehoods in such statements, . . . or any

6 other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We

7 defer . . . to an IJ’s credibility determination unless

8 . . . it is plain that no reasonable fact-finder could make

9 such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d

10 at 167.

11 Substantial evidence supports the agency’s

12 determination that Kibria was not credible. First, the

13 agency reasonably relied on Kibria’s witnesses’ identical

14 or nearly identical descriptions of key events. “[S]triking

15 similarities between affidavits are an indication that the

16 statements are canned.” Mei Chai Ye v. U.S. Dep’t of

17 Justice, 489 F.3d 517, 524 (2d Cir. 2007) (quotation marks

18 omitted)). See also Singh v. BIA, 438 F.3d 145, 148 (2d

19 Cir. 2006) (upholding adverse credibility determination

20 partly based on nearly identical language in supporting

21 affidavits). Several affidavits purporting to be from

22 different witnesses gave identical or nearly identical

23 paragraph-long descriptions of a February 2009 attack, a 3 1 July 2009 attack, and a November 2010 attack and Kibria’s

2 escape. A.R. 30-31. Kibria concedes that the similarities

3 in these affidavits undermine his credibility.

4 Omissions of key events in affidavits from Kibria’s

5 mother and a fellow party member, and inconsistencies

6 between Kibria’s testimony and a doctor’s letter describing

7 his injuries, bolster the adverse credibility ruling. See

8 Xiu Xia Lin, 534 F.3d at 166 n.3 (“An inconsistency and an

9 omission are . . . functionally equivalent” for credibility

10 purposes.”). Review of the record confirms the

11 discrepancies. Moreover, as the Government argues, Kibria

12 did not challenge the agency’s reliance on these

13 discrepancies in his brief to the BIA, and so he has failed

14 to exhaust these arguments. See Lin Zhong v. U.S. Dep’t of

15 Justice, 480 F.3d 104, 122-23 (2d Cir. 2007) (describing

16 the exhaustion requirement).

17 The above discrepancies, which call into question both

18 Kibria’s testimony and his corroborating evidence of the

19 alleged persecution, provide substantial evidence for the

20 adverse credibility ruling. 8 U.S.C. § 1158(b)(1)(B)(iii);

21 Xiu Xia Lin, 534 F.3d at 166-67. Because Kibria’s claims

22 were all based on the same factual predicate, the adverse

23 credibility ruling is dispositive of asylum, withholding of 4 1 removal, and CAT relief. Paul v. Gonzales, 444 F.3d 148,

2 156-57 (2d Cir. 2006).

3 For the foregoing reasons, the petition for review is

4 DENIED.

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