20-4025 Rahman v. Garland BIA Poczter, IJ A209 240 149
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 18th day of April, two thousand twenty-two. 5 6 PRESENT: 7 RAYMOND J. LOHIER, JR., 8 WILLIAM J. NARDINI, 9 STEVEN J. MENASHI, 10 Circuit Judges. 11 _____________________________________ 12 13 SHAHIDUR RAHMAN, 14 Petitioner, 15 16 v. 20-4025 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Mahfuzur Rahman, Esq., Elmhurst, 24 NY. 25 26 FOR RESPONDENT: Brian M. Boynton, Acting Assistant 27 Attorney General; Anthony C. 1 Payne, Assistant Director; 2 Jennifer A. Bowen, Trial Attorney, 3 Office of Immigration Litigation, 4 United States Department of 5 Justice, Washington, DC.
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Shahidur Rahman, a native and citizen of
11 Bangladesh, seeks review of a November 18, 2020, decision of
12 the BIA affirming a May 10, 2018, decision of an Immigration
13 Judge (“IJ”) denying his application for asylum, withholding
14 of removal, and protection under the Convention Against
15 Torture (“CAT”). In re Shahidur Rahman, No. A 209 240 149
16 (B.I.A. Nov. 18, 2020), aff’g No. A 209 240 149 (Immig. Ct.
17 N.Y. City May 10, 2018). We assume the parties’ familiarity
18 with the underlying facts and procedural history.
19 We have considered both the IJ’s and the BIA’s decisions
20 “for the sake of completeness.” Wangchuck v. Dep’t of
21 Homeland Security, 448 F.3d 524, 528 (2d Cir. 2006). We
22 review adverse credibility determinations for substantial
23 evidence, Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir.
24 2018), and “the administrative findings of fact are 2 1 conclusive unless any reasonable adjudicator would be
2 compelled to conclude to the contrary,” 8 U.S.C.
3 § 1252(b)(4)(B). “The scope of review under the substantial
4 evidence standard is exceedingly narrow, and we will uphold
5 the BIA’s decision unless the petitioner demonstrates that
6 the record evidence was so compelling that no reasonable
7 factfinder could fail to find him eligible for relief.” Singh
8 v. Garland, 11 F.4th 106, 113 (2d Cir. 2021) (internal
9 quotation marks omitted). The IJ may, “[c]onsidering the
10 totality of the circumstances,” base a credibility finding on
11 inconsistencies in an asylum applicant’s statements or
12 between his statements and other evidence, on the demeanor or
13 responsiveness of the applicant, or on the inherent
14 plausibility of the applicant’s account “without regard to
15 whether an inconsistency, inaccuracy, or falsehood goes to
16 the heart of the applicant’s claim.” 8 U.S.C.
17 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s adverse
18 credibility determination unless, from the totality of the
19 circumstances, it is plain that no reasonable fact-finder
20 could make such an adverse credibility ruling.” Xiu Xia Lin
21 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei
3 1 Gao, 891 F.3d at 76.
2 Substantial evidence supports the agency’s adverse
3 credibility determination. The IJ reasonably relied on an
4 omission in Rahman’s story during his credible fear
5 interview. Xiu Xia Lin, 534 F.3d at 167. During the
6 interview Rahman failed to mention being followed in November
7 2015, despite being asked why he waited two years after his
8 last attack to leave Bangladesh. At the interview, he
9 responded that he was not financially able to leave sooner
10 and was not able to leave because he was hiding from the Awami
11 League. In contrast, he testified that he left Bangladesh
12 in December 2015 because an Awami League member followed him
13 home from work in November 2015. The agency did not err in
14 relying on this omission because it creates an inconsistency
15 in Rahman’s story about why he left Bangladesh when he did.
16 See Lianping Li v. Lynch, 839 F.3d 144, 149–50 (2d Cir. 2016)
17 (upholding adverse credibility determination where “asylum
18 application did not simply omit incidents of persecution
19 . . . [but] [r]ather . . . described the same incidents of
20 persecution differently”).
21 The agency also reasonably relied on typographical errors
4 1 and canned statements in Rahman’s corroborating evidence.
2 See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)
3 (“Submission of inconsistent statements as well as a
4 fraudulent document in support of an asylum application can
5 constitute substantial evidence supporting an adverse
6 credibility determination.”); Tun v. INS, 445 F.3d 554, 563
7 (2d Cir. 2006) (“An applicant may be required to provide any
8 reasonably available documentation to corroborate the
9 elements of her claim . . . and an IJ may rely on the failure
10 to do so in finding that the applicant has not met her burden
11 of proof.”). Rahman submitted English-language medical
12 documents to corroborate his treatment following a beating
13 and injuries sustained in a bombing, but the letterhead on
14 those documents contained spelling errors calling into
15 question their reliability as official documents. The IJ
16 reasonably concluded that Rahman’s “lack of education or
17 knowledge of the contents of his documents does not explain
18 why these documents, which were supposedly created by
19 English-speaking medical professionals, would contain these
20 spelling mistakes.” See Majidi v. Gonzalez, 430 F.3d 77, 80
21 (2d Cir. 2005) (stating that the agency need not credit an
5 1 applicant’s explanations for inconsistent testimony unless “a
2 reasonable fact-finder would be compelled to credit his
3 testimony.” (quotation marks omitted)). Letters from his
4 mother, coworker, and wife contained similar statements with
5 the same misspellings of words.
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20-4025 Rahman v. Garland BIA Poczter, IJ A209 240 149
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 18th day of April, two thousand twenty-two. 5 6 PRESENT: 7 RAYMOND J. LOHIER, JR., 8 WILLIAM J. NARDINI, 9 STEVEN J. MENASHI, 10 Circuit Judges. 11 _____________________________________ 12 13 SHAHIDUR RAHMAN, 14 Petitioner, 15 16 v. 20-4025 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Mahfuzur Rahman, Esq., Elmhurst, 24 NY. 25 26 FOR RESPONDENT: Brian M. Boynton, Acting Assistant 27 Attorney General; Anthony C. 1 Payne, Assistant Director; 2 Jennifer A. Bowen, Trial Attorney, 3 Office of Immigration Litigation, 4 United States Department of 5 Justice, Washington, DC.
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Shahidur Rahman, a native and citizen of
11 Bangladesh, seeks review of a November 18, 2020, decision of
12 the BIA affirming a May 10, 2018, decision of an Immigration
13 Judge (“IJ”) denying his application for asylum, withholding
14 of removal, and protection under the Convention Against
15 Torture (“CAT”). In re Shahidur Rahman, No. A 209 240 149
16 (B.I.A. Nov. 18, 2020), aff’g No. A 209 240 149 (Immig. Ct.
17 N.Y. City May 10, 2018). We assume the parties’ familiarity
18 with the underlying facts and procedural history.
19 We have considered both the IJ’s and the BIA’s decisions
20 “for the sake of completeness.” Wangchuck v. Dep’t of
21 Homeland Security, 448 F.3d 524, 528 (2d Cir. 2006). We
22 review adverse credibility determinations for substantial
23 evidence, Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir.
24 2018), and “the administrative findings of fact are 2 1 conclusive unless any reasonable adjudicator would be
2 compelled to conclude to the contrary,” 8 U.S.C.
3 § 1252(b)(4)(B). “The scope of review under the substantial
4 evidence standard is exceedingly narrow, and we will uphold
5 the BIA’s decision unless the petitioner demonstrates that
6 the record evidence was so compelling that no reasonable
7 factfinder could fail to find him eligible for relief.” Singh
8 v. Garland, 11 F.4th 106, 113 (2d Cir. 2021) (internal
9 quotation marks omitted). The IJ may, “[c]onsidering the
10 totality of the circumstances,” base a credibility finding on
11 inconsistencies in an asylum applicant’s statements or
12 between his statements and other evidence, on the demeanor or
13 responsiveness of the applicant, or on the inherent
14 plausibility of the applicant’s account “without regard to
15 whether an inconsistency, inaccuracy, or falsehood goes to
16 the heart of the applicant’s claim.” 8 U.S.C.
17 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s adverse
18 credibility determination unless, from the totality of the
19 circumstances, it is plain that no reasonable fact-finder
20 could make such an adverse credibility ruling.” Xiu Xia Lin
21 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei
3 1 Gao, 891 F.3d at 76.
2 Substantial evidence supports the agency’s adverse
3 credibility determination. The IJ reasonably relied on an
4 omission in Rahman’s story during his credible fear
5 interview. Xiu Xia Lin, 534 F.3d at 167. During the
6 interview Rahman failed to mention being followed in November
7 2015, despite being asked why he waited two years after his
8 last attack to leave Bangladesh. At the interview, he
9 responded that he was not financially able to leave sooner
10 and was not able to leave because he was hiding from the Awami
11 League. In contrast, he testified that he left Bangladesh
12 in December 2015 because an Awami League member followed him
13 home from work in November 2015. The agency did not err in
14 relying on this omission because it creates an inconsistency
15 in Rahman’s story about why he left Bangladesh when he did.
16 See Lianping Li v. Lynch, 839 F.3d 144, 149–50 (2d Cir. 2016)
17 (upholding adverse credibility determination where “asylum
18 application did not simply omit incidents of persecution
19 . . . [but] [r]ather . . . described the same incidents of
20 persecution differently”).
21 The agency also reasonably relied on typographical errors
4 1 and canned statements in Rahman’s corroborating evidence.
2 See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)
3 (“Submission of inconsistent statements as well as a
4 fraudulent document in support of an asylum application can
5 constitute substantial evidence supporting an adverse
6 credibility determination.”); Tun v. INS, 445 F.3d 554, 563
7 (2d Cir. 2006) (“An applicant may be required to provide any
8 reasonably available documentation to corroborate the
9 elements of her claim . . . and an IJ may rely on the failure
10 to do so in finding that the applicant has not met her burden
11 of proof.”). Rahman submitted English-language medical
12 documents to corroborate his treatment following a beating
13 and injuries sustained in a bombing, but the letterhead on
14 those documents contained spelling errors calling into
15 question their reliability as official documents. The IJ
16 reasonably concluded that Rahman’s “lack of education or
17 knowledge of the contents of his documents does not explain
18 why these documents, which were supposedly created by
19 English-speaking medical professionals, would contain these
20 spelling mistakes.” See Majidi v. Gonzalez, 430 F.3d 77, 80
21 (2d Cir. 2005) (stating that the agency need not credit an
5 1 applicant’s explanations for inconsistent testimony unless “a
2 reasonable fact-finder would be compelled to credit his
3 testimony.” (quotation marks omitted)). Letters from his
4 mother, coworker, and wife contained similar statements with
5 the same misspellings of words. Moreover, contradicting his
6 testimony that the authors of the letters did not see his
7 application, his own written statement contained a similar
8 language with the same errors. The IJ reasonably concluded
9 that the errors in these documents undermined their validity
10 and Rahman’s credibility overall. See Mei Chai Ye v. U.S.
11 Dep’t of Justice, 489 F.3d 517, 524–27 (2d Cir. 2007)
12 (upholding adverse credibility determination based primarily
13 on “striking similarities between affidavits,” which
14 indicated that the story was “canned”); Siewe v. Gonzales,
15 480 F.3d 160, 170 (2d Cir. 2007) (“[A] single false document
16 or a single instance of false testimony may (if attributable
17 to the petitioner) infect the balance of the alien’s
18 uncorroborated or unauthenticated evidence.”).
19 In sum, substantial evidence supports the adverse
20 credibility determination because Rahman’s omission from his
21 credible fear interview created inconsistency in his story
6 1 and the errors in his documentary evidence called into
2 question the validity of that evidence and further undermined
3 his credibility. See Xiu Xia Lin, 534 F.3d at 166–67; Biao
4 Yang, 496 F.3d at 273; Mei Chai Ye, 489 F.3d at 524. The
5 adverse credibility determination is dispositive of asylum,
6 withholding of removal, and CAT relief because all three
7 claims are based on the same factual predicate. See Paul v.
8 Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).
9 For the foregoing reasons, the petition for review is
10 DENIED. All pending motions and applications are DENIED and
11 stays VACATED.
12 FOR THE COURT: 13 Catherine O’Hagan Wolfe, 14 Clerk of Court