Rahman v. Wilkinson

Opinion

18-3737 Rahman v. Wilkinson BIA Kolbe, IJ

A208 455 354

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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 28th day of January, two thousand twenty-one. 5 6 PRESENT: 7 RAYMOND J. LOHIER, JR., 8 JOSEPH F. BIANCO, 9 MICHAEL H. PARK, 10 Circuit Judges. 11 _____________________________________ 12 13 JOLILOR RAHMAN, 14 Petitioner, 15 16 v. 18-3737 17 NAC 18 MONTY WILKINSON, ACTING UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 1 21 _____________________________________ 22 23 FOR PETITIONER: Usman Ahmad, Law Office of Usman 24 B. Ahmad, P.C., Long Island City, 25 NY. 26 1Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General Monty Wilkinson is automatically substituted for former Acting Attorney General Jeffrey A. Rosen as Respondent.

1 FOR RESPONDENT: Brian Boynton, Acting Assistant 2 Attorney General; Anthony P. 3 Nicastro, Assistant Director; Dana 4 M. Camilleri, Trial Attorney, 5 Office of Immigration Litigation, 6 United States Department of 7 Justice, Washington, DC.

8 UPON DUE CONSIDERATION of this petition for review of a 9 Board of Immigration Appeals (“BIA”) decision, it is hereby 10 ORDERED, ADJUDGED, AND DECREED that the petition for review 11 is DENIED. 12 Petitioner Jolilor Rahman, a native and citizen of 13 Bangladesh, seeks review of a November 21, 2018 decision of 14 the BIA affirming an October 17, 2017 decision of an 15 Immigration Judge (“IJ”). In re Jolilor Rahman, No. A 208 16 455 354 (B.I.A. Nov. 21, 2018), aff’g No. A 208 455 354(Immigr. 17 Ct. N.Y.C. Oct. 17, 2017). We assume the parties’ 18 familiarity with the underlying facts and procedural history. 19 Under the circumstances of this case, we have considered 20 both the IJ’s and the BIA’s opinions “for the sake of 21 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 22 524, 528 (2d Cir. 2006). The applicable standards of review 23 are well established. See 8 U.S.C. § 1252(b)(4)(B) 24 (“[A]dministrative findings of fact are conclusive unless any 25 reasonable adjudicator would be compelled to conclude to the

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1 contrary.”); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d 2 Cir. 2018) (reviewing adverse credibility determination for 3 substantial evidence). 4 “Considering the totality of the circumstances, and all 5 relevant factors, a trier of fact may base a credibility 6 determination on the . . . inherent plausibility of the 7 applicant’s or witness’s account” and on inconsistencies 8 within and between an applicant’s statements and documentary 9 evidence, “without regard to whether an inconsistency, 10 inaccuracy, or falsehood goes to the heart of the applicant’s 11 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to 12 an IJ’s credibility determination unless, from the totality 13 of the circumstances, it is plain that no reasonable fact- 14 finder could make such an adverse credibility ruling.” Xiu 15 Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) 16 (per curiam); accord Hong Fei Gao, 891 F.3d at 76. 17 Substantial evidence supports the adverse credibility 18 determination. 19 The agency reasonably relied on Rahman’s inconsistent 20 statements regarding his political affiliation. See 8 U.S.C. 21 § 1158(b)(1)(B)(iii). At his hearing and in a written

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1 statement attached to his application, Rahman stated several 2 times that he was apolitical and had no interest in joining 3 any political party. In his asylum application itself, 4 however, Rahman stated that he was actively involved in the 5 Bangladesh Nationalist Party and that he continued to support 6 that party. The agency was not required to credit Rahman’s 7 explanation that the mistake was the fault of the Bangladeshi 8 individual who filled out the application because it did not 9 resolve why that individual would have made contradictory 10 statements. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 11 2005) (“A petitioner must do more than offer a plausible 12 explanation for his inconsistent statements to secure relief; 13 he must demonstrate that a reasonable fact-finder would be 14 compelled to credit his testimony.” (internal quotation marks 15 omitted)). The agency also reasonably relied on 16 inconsistencies between Rahman’s statements and evidence 17 about reporting an attack to the police. Rahman testified 18 that he went by himself to the police to report that he and 19 his father were attacked by Awami League members, but he 20 submitted a witness statement stating, to the contrary, that 21 two others accompanied him to the police station. Rahman

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1 offered no explanation when confronted with this 2 inconsistency. 3 Having questioned Rahman’s credibility as to his 4 political affiliation and the alleged attacks, the agency 5 reasonably relied on his failure to rehabilitate his 6 testimony with reliable corroborating evidence. See Biao 7 Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An 8 applicant’s failure to corroborate his or her testimony may 9 bear on credibility, because the absence of corroboration in 10 general makes an applicant unable to rehabilitate testimony 11 that has already been called into question.”). The IJ 12 reasonably concluded that letters from a doctor to 13 corroborate injuries were not entitled to any weight because 14 they were not contemporaneous, came from the same individual 15 who purportedly helped Rahman complete an asylum form with 16 the wrong claim, and had a stamp that included a misspelling 17 and attempted correction of the word “medical.” See Y.C. v. 18 Holder, 741 F.3d 324, 332 (2d Cir 2013) (“We 19 generally defer to the agency’s evaluation of the weight to 20 be afforded an applicant’s documentary evidence.”).

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1 Finally, the BIA reasonably rejected the new arguments 2 Rahman made on appeal—that inconsistencies were attributable 3 to interpreter error or his past trauma. To the extent he 4 attempted to raise a due process claim, Rahman provided no 5 evidence of poor interpretation or prejudice; he did not raise 6 this issue at the hearing and the inconsistencies were largely 7 between statements and documentary evidence prepared prior to 8 the hearing. See Burger v. Gonzales, 498 F.3d 131, 134 (2d 9 Cir. 2007) (“To establish a violation of due process, an 10 alien must show that she was denied a full and fair 11 opportunity to present her claims or that the IJ or BIA 12 otherwise deprived her of fundamental fairness.” (internal 13 quotation marks omitted)); Garcia-Villeda v. Mukasey, 531 14 F.3d 141, 149 (2d Cir. 2008) (“Parties claiming denial 15 of due process in immigration cases must, in order to 16 prevail, allege some cognizable prejudice fairly attributable 17 to the challenged process.” (internal quotation marks 18 omitted)). Rahman similarly did not raise his argument 19 regarding past trauma before the IJ or present any evidence 20 to support it. Moreover, past trauma does not resolve his 21 inaccurate statement in his application that he supported a

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1 specific political party, his lack of familiarity with his 2 witness’s statement, or the issues with the medical records. 3 See Majidi, 430 F.3d at 80–81. 4 Given the inconsistent statements, implausible 5 explanations, and lack of reliable corroboration, the 6 agency’s adverse credibility determination is supported by 7 substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); 8 Xiu Xia Lin, 534 F.3d at 163–64. That determination is 9 dispositive of asylum, withholding of removal, and relief 10 under the Convention Against Torture because all three claims 11 are based on the same factual predicate. See Paul v. 12 Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006). 13 For the foregoing reasons, the petition for review is 14 DENIED. All pending motions and applications are DENIED and 15 stays VACATED.

16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, 18 Clerk of Court