17-1197 Rana v. Sessions BIA Loprest, IJ A205 301 041
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 23rd day of July, two thousand eighteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 RAYMOND J. LOHIER, JR., 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 SHOHEL RANA, 14 15 Petitioner, 16 17 v. 17-1197 18 NAC 19 20 JEFFERSON B. SESSIONS III, 21 UNITED STATES ATTORNEY GENERAL, 22 23 Respondent. 24 _____________________________________ 25 26 FOR PETITIONER: Amy Nussbaum Gell, Gell & Gell, 27 New York, NY. 28 1 FOR RESPONDENT: Chad A. Readler, Acting Assistant 2 Attorney General; Daniel E. 3 Goldman, Senior Litigation 4 Counsel; Lindsay Corliss, Trial 5 Attorney, Office of Immigration 6 Litigation, United States 7 Department of Justice, 8 Washington, DC. 9 10 UPON DUE CONSIDERATION of this petition for review of a
11 Board of Immigration Appeals (“BIA”) decision, it is hereby
12 ORDERED, ADJUDGED, AND DECREED that the petition for review
13 is DENIED.
14 Petitioner Shohel Rana, a native and citizen of
15 Bangladesh, seeks review of a March 28, 2017, decision of the
16 BIA affirming a July 12, 2016, decision of an Immigration
17 Judge (“IJ”) denying Rana’s application for asylum,
18 withholding of removal, and relief under the Convention
19 Against Torture (“CAT”). In re Shohel Rana, No. A205 301 041
20 (B.I.A. Mar. 28, 2017), aff’g No. A205 301 041 (Immig. Ct.
21 N.Y. City July 12, 2016). We assume the parties’ familiarity
22 with the underlying facts and procedural history in this case.
23 Under the circumstances of this case, we have reviewed
24 the IJ’s decision as modified by the BIA. See Xue Hong Yang
25 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
26 The applicable standards of review are well established. See
27 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d
2 1 162, 165-66 (2d Cir. 2008).
2 The governing REAL ID Act credibility standard provides
3 that the agency must “[c]onsider[] the totality of the
4 circumstances,” and may base a credibility finding on an
5 applicant’s “demeanor, candor, or responsiveness,” the
6 plausibility of his account, and inconsistencies or omissions
7 in his or his witness’s statements. 8 U.S.C.
8 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64, 166-
9 67. We generally defer to the IJ with respect to demeanor
10 because it “is paradigmatically the sort of evidence that a
11 fact-finder is best positioned to evaluate.” Li Zu Guan v.
12 INS, 453 F.3d 129, 140 (2d Cir. 2006). “We defer . . . to an
13 IJ’s credibility determination” as a whole “unless . . . it
14 is plain that no reasonable fact-finder could make such an
15 adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
16 For the reasons that follow, we conclude that the agency’s
17 adverse credibility determination is supported by substantial
18 evidence.
19 First, the agency reasonably relied on the dramatically
20 different accounts in Rana’s testimony and his father’s
21 letter about his uncle’s alleged murder by political
22 opponents. See 8 U.S.C. § 1158(b)(1)(B)(iii). This
3 1 inconsistency alone was substantial evidence for the adverse
2 credibility determination. See Xian Tuan Ye v. Dep’t of
3 Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006) (holding that
4 material inconsistency regarding basis of applicant’s asylum
5 claim is substantial evidence). Further, the IJ relied on
6 Rana’s demeanor when asked to explain the inconsistency. Rana
7 paused more than once, gave an inaudible response, testified
8 to the truth of his father’s account (that Rana was present
9 for his uncle’s murder) without explaining his prior
10 testimony to the contrary, and ultimately stated that he did
11 not understand. See 8 U.S.C. § 1158(b)(1)(B)(iii); Li Zu
12 Guan, 453 F.3d at 140.
13 Second, the adverse credibility determination is
14 reinforced by additional demeanor findings. See 8 U.S.C.
15 § 1158(b)(1)(B)(iii). For example, the record supports the
16 IJ’s finding that Rana was evasive when he denied knowledge
17 of groups affiliated with his party (the Bangladesh
18 Nationalist Party (“BNP”)), despite testifying to having been
19 a president of the BNP.
20 Last, the agency reasonably found Rana’s corroborating
21 evidence insufficient to rehabilitate his credibility. Biao
22 Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An
4 1 applicant’s failure to corroborate his or her testimony may
2 bear on credibility, because the absence of corroboration in
3 general makes an applicant unable to rehabilitate testimony
4 that has already been called into question.”). Rana argues
5 that his sister’s death certificate should have been given
6 more weight because it was authenticated; but the agency did
7 not err in finding it insufficient to rehabilitate Rana’s
8 credibility. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
9 315, 342 (2d Cir. 2006) (observing that the weight accorded
10 to an applicant’s “evidence lie[s] largely within the
11 discretion of the IJ.” (internal quotation marks omitted)).
12 The death certificate corroborates the sister’s death, but
13 does not establish that Rana’s political opponents were
14 responsible. In any event, there remained the inconsistency
15 concerning the uncle’s murder and whether Rana was present
16 when it happened. See Siewe v. Gonzales, 480 F.3d 160, 170
17 (2d Cir. 2007) (“[A] single false document or a single
18 instance of false testimony may (if attributable to the
19 petitioner) infect the balance of the alien’s uncorroborated
20 or unauthenticated evidence.”).
21 Rana also contends that the BIA failed to consider
22 evidence corroborating his BNP membership. Although the
5 1 agency did not explicitly mention Rana’s BNP letter, the
2 agency is not required to “expressly parse or refute on the
Free access — add to your briefcase to read the full text and ask questions with AI
17-1197 Rana v. Sessions BIA Loprest, IJ A205 301 041
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 23rd day of July, two thousand eighteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 RAYMOND J. LOHIER, JR., 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 SHOHEL RANA, 14 15 Petitioner, 16 17 v. 17-1197 18 NAC 19 20 JEFFERSON B. SESSIONS III, 21 UNITED STATES ATTORNEY GENERAL, 22 23 Respondent. 24 _____________________________________ 25 26 FOR PETITIONER: Amy Nussbaum Gell, Gell & Gell, 27 New York, NY. 28 1 FOR RESPONDENT: Chad A. Readler, Acting Assistant 2 Attorney General; Daniel E. 3 Goldman, Senior Litigation 4 Counsel; Lindsay Corliss, Trial 5 Attorney, Office of Immigration 6 Litigation, United States 7 Department of Justice, 8 Washington, DC. 9 10 UPON DUE CONSIDERATION of this petition for review of a
11 Board of Immigration Appeals (“BIA”) decision, it is hereby
12 ORDERED, ADJUDGED, AND DECREED that the petition for review
13 is DENIED.
14 Petitioner Shohel Rana, a native and citizen of
15 Bangladesh, seeks review of a March 28, 2017, decision of the
16 BIA affirming a July 12, 2016, decision of an Immigration
17 Judge (“IJ”) denying Rana’s application for asylum,
18 withholding of removal, and relief under the Convention
19 Against Torture (“CAT”). In re Shohel Rana, No. A205 301 041
20 (B.I.A. Mar. 28, 2017), aff’g No. A205 301 041 (Immig. Ct.
21 N.Y. City July 12, 2016). We assume the parties’ familiarity
22 with the underlying facts and procedural history in this case.
23 Under the circumstances of this case, we have reviewed
24 the IJ’s decision as modified by the BIA. See Xue Hong Yang
25 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
26 The applicable standards of review are well established. See
27 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d
2 1 162, 165-66 (2d Cir. 2008).
2 The governing REAL ID Act credibility standard provides
3 that the agency must “[c]onsider[] the totality of the
4 circumstances,” and may base a credibility finding on an
5 applicant’s “demeanor, candor, or responsiveness,” the
6 plausibility of his account, and inconsistencies or omissions
7 in his or his witness’s statements. 8 U.S.C.
8 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64, 166-
9 67. We generally defer to the IJ with respect to demeanor
10 because it “is paradigmatically the sort of evidence that a
11 fact-finder is best positioned to evaluate.” Li Zu Guan v.
12 INS, 453 F.3d 129, 140 (2d Cir. 2006). “We defer . . . to an
13 IJ’s credibility determination” as a whole “unless . . . it
14 is plain that no reasonable fact-finder could make such an
15 adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
16 For the reasons that follow, we conclude that the agency’s
17 adverse credibility determination is supported by substantial
18 evidence.
19 First, the agency reasonably relied on the dramatically
20 different accounts in Rana’s testimony and his father’s
21 letter about his uncle’s alleged murder by political
22 opponents. See 8 U.S.C. § 1158(b)(1)(B)(iii). This
3 1 inconsistency alone was substantial evidence for the adverse
2 credibility determination. See Xian Tuan Ye v. Dep’t of
3 Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006) (holding that
4 material inconsistency regarding basis of applicant’s asylum
5 claim is substantial evidence). Further, the IJ relied on
6 Rana’s demeanor when asked to explain the inconsistency. Rana
7 paused more than once, gave an inaudible response, testified
8 to the truth of his father’s account (that Rana was present
9 for his uncle’s murder) without explaining his prior
10 testimony to the contrary, and ultimately stated that he did
11 not understand. See 8 U.S.C. § 1158(b)(1)(B)(iii); Li Zu
12 Guan, 453 F.3d at 140.
13 Second, the adverse credibility determination is
14 reinforced by additional demeanor findings. See 8 U.S.C.
15 § 1158(b)(1)(B)(iii). For example, the record supports the
16 IJ’s finding that Rana was evasive when he denied knowledge
17 of groups affiliated with his party (the Bangladesh
18 Nationalist Party (“BNP”)), despite testifying to having been
19 a president of the BNP.
20 Last, the agency reasonably found Rana’s corroborating
21 evidence insufficient to rehabilitate his credibility. Biao
22 Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An
4 1 applicant’s failure to corroborate his or her testimony may
2 bear on credibility, because the absence of corroboration in
3 general makes an applicant unable to rehabilitate testimony
4 that has already been called into question.”). Rana argues
5 that his sister’s death certificate should have been given
6 more weight because it was authenticated; but the agency did
7 not err in finding it insufficient to rehabilitate Rana’s
8 credibility. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
9 315, 342 (2d Cir. 2006) (observing that the weight accorded
10 to an applicant’s “evidence lie[s] largely within the
11 discretion of the IJ.” (internal quotation marks omitted)).
12 The death certificate corroborates the sister’s death, but
13 does not establish that Rana’s political opponents were
14 responsible. In any event, there remained the inconsistency
15 concerning the uncle’s murder and whether Rana was present
16 when it happened. See Siewe v. Gonzales, 480 F.3d 160, 170
17 (2d Cir. 2007) (“[A] single false document or a single
18 instance of false testimony may (if attributable to the
19 petitioner) infect the balance of the alien’s uncorroborated
20 or unauthenticated evidence.”).
21 Rana also contends that the BIA failed to consider
22 evidence corroborating his BNP membership. Although the
5 1 agency did not explicitly mention Rana’s BNP letter, the
2 agency is not required to “expressly parse or refute on the
3 record each individual argument or piece of evidence offered
4 by the petitioner,” Jian Hui Shao v. Mukasey, 546 F.3d 138,
5 169 (2d Cir. 2008) (internal quotation marks omitted), and
6 “we presume that [the agency] has taken into account all the
7 evidence before [it], unless the record compellingly suggests
8 otherwise,” Xiao Ji Chen, 471 F.3d at 336 n.17.
9 Given the foregoing findings, which called into question
10 both Rana’s allegations of past events and his political
11 activities, the adverse credibility determination is
12 supported by the “totality of the circumstances.” Xiu Xia
13 Lin, 534 F.3d at 167. Contrary to Rana’s assertion, the
14 credibility determination is therefore dispositive of asylum,
15 withholding of removal, and CAT relief because all three
16 claims are based on the same factual predicate. See Paul v.
17 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
18 For the foregoing reasons, the petition for review is
19 DENIED. As we have completed our review, any stay of removal
20 that the Court previously granted in this petition is VACATED,
21 and any pending motion for a stay of removal in this petition
22 is DISMISSED as moot. Any pending request for oral argument
6 1 in this petition is DENIED in accordance with Federal Rule of
2 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
3 34.1(b).
4 FOR THE COURT: 5 Catherine O’Hagan Wolfe 6 Clerk of Court