20-853 Salim v. Garland BIA Vomacka, IJ A201 291 842 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 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 17th day of August, two thousand twenty-two. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 RAYMOND J. LOHIER, JR., 9 MYRNA PÉREZ 10 Circuit Judges. 11 _____________________________________ 12 13 MOHAMMED SALIM, 14 Petitioner, 15 16 v. 20-853 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: Jeffrey Bossert Clark, Acting 27 Assistant Attorney General; 28 Anthony C. Payne, Assistant 1 Director; Raya Jarawan, Trial 2 Attorney, Office of Immigration 3 Litigation, United States 4 Department of Justice, Washington, 5 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 Mohammed Salim, a native and citizen of
11 Bangladesh, seeks review of a February 10, 2020, decision of
12 the BIA affirming a March 30, 2018, decision of an Immigration
13 Judge (“IJ”) denying asylum, withholding of removal, and
14 relief under the Convention Against Torture (“CAT”). In re
15 Mohammed Salim, No. A 201 291 842 (B.I.A. Feb. 10, 2020),
16 aff’g No. A 201 291 842 (Immig. Ct. N.Y. City Mar. 30, 2018).
17 We assume the parties’ familiarity with the underlying facts
18 and procedural history.
19 We have reviewed the IJ’s decision as supplemented by
20 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
21 Cir. 2005). We review adverse credibility determinations
22 under a substantial evidence standard, see Hong Fei Gao v.
23 Sessions, 891 F.3d 67, 76 (2d Cir. 2018), and “the
24 administrative findings of fact are conclusive unless any 2 1 reasonable adjudicator would be compelled to conclude to the
2 contrary,” 8 U.S.C. § 1252(b)(4)(B). “Considering the
3 totality of the circumstances, and all relevant factors, a
4 trier of fact may base a credibility determination on . . .
5 the inherent plausibility of the applicant’s or witness’s
6 account, the consistency between the applicant’s or witness’s
7 written and oral statements . . . , the internal consistency
8 of each such statement, [and] the consistency of such
9 statements with other evidence of record . . . without regard
10 to whether an inconsistency, inaccuracy, or falsehood goes to
11 the heart of the applicant’s claim . . . .” 8 U.S.C.
12 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility
13 determination unless, from the totality of the circumstances,
14 it is plain that no reasonable fact-finder could make such an
15 adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534
16 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d
17 at 76. Substantial evidence supports the agency’s
18 determination that Salim was not credible as to his claim of
19 past persecution by members of the Awami League and the police
20 on account of his support for the Bangladesh National Party
21 (“BNP”).
3 1 The agency reasonably relied on several inconsistencies
2 between Salim’s application and testimony regarding alleged
3 attacks. See 8 U.S.C. § 1158(b)(1)(B)(iii); Likai Gao v.
4 Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020.) Salim’s
5 application gave detailed accounts of attacks in October 2001
6 and October 2006, three attacks in January 2009, and two
7 attacks in February 2010. However, he testified that he was
8 attacked for the first time in 2009, did not mention the 2001
9 or 2006 incidents until confronted with the discrepancy on
10 cross-examination, and could not remember anything regarding
11 the 2006 attack even though it allegedly occurred on a
12 historic day and left him unconscious. Moreover, when asked
13 who attacked him in 2001, he named different attackers than
14 those named in his application. And while his written
15 statement described three attacks in January 2009, he
16 testified about only two.
17 The agency also reasonably found that Salim’s documentary
18 evidence did not rehabilitate his credibility and, in some
19 cases, contradicted or raised doubts about the plausibility
20 of his account. 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia
21 Lin, 534 F.3d at 167 (permitting consideration of
4 1 discrepancies between the petitioner’s testimony and letters
2 from third parties); Biao Yang v. Gonzales, 496 F.3d 268, 273
3 (2d Cir. 2007) (“An applicant’s failure to corroborate his or
4 her testimony may bear on credibility, because the absence of
5 corroboration in general makes an applicant unable to
6 rehabilitate testimony that has already been called into
7 question.”). Salim testified that he was hospitalized on
8 February 27, but his doctor’s letter states that he was
9 hospitalized from February 19 to 22. He testified that Awami
10 League members “ransacked” his house in Bangladesh and “burnt
11 down” his family’s furniture and, following his departure,
12 returned many times to his wife’s home and broke furniture.
13 But his wife did not confirm these details, stating only that
14 Awami League members threatened her and came to the house
15 searching for Salim. His mother’s letter describes 2001 and
16 2006 attacks that Salim did not recall in his testimony.
17 Moreover, his mother’s and sister’s letters contained some
18 identical language, suggesting they were not, as he
19 testified, written independently. See Singh v. BIA, 438 F.3d
20 145, 148 (2d Cir. 2006) (per curiam) (upholding adverse
21 credibility determination based in part on “nearly identical
5 1 language in the written affidavits allegedly provided by
2 different people” in support of a petitioner’s claim).
3 The agency also reasonably rejected some of Salim’s
4 testimony as implausible. A finding of implausibility “must
5 be based on more than bald speculation or caprice” but will
6 generally be upheld where it is “tethered to record evidence,
7 and there is nothing else in the record from which a firm
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20-853 Salim v. Garland BIA Vomacka, IJ A201 291 842 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 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 17th day of August, two thousand twenty-two. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 RAYMOND J. LOHIER, JR., 9 MYRNA PÉREZ 10 Circuit Judges. 11 _____________________________________ 12 13 MOHAMMED SALIM, 14 Petitioner, 15 16 v. 20-853 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: Jeffrey Bossert Clark, Acting 27 Assistant Attorney General; 28 Anthony C. Payne, Assistant 1 Director; Raya Jarawan, Trial 2 Attorney, Office of Immigration 3 Litigation, United States 4 Department of Justice, Washington, 5 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 Mohammed Salim, a native and citizen of
11 Bangladesh, seeks review of a February 10, 2020, decision of
12 the BIA affirming a March 30, 2018, decision of an Immigration
13 Judge (“IJ”) denying asylum, withholding of removal, and
14 relief under the Convention Against Torture (“CAT”). In re
15 Mohammed Salim, No. A 201 291 842 (B.I.A. Feb. 10, 2020),
16 aff’g No. A 201 291 842 (Immig. Ct. N.Y. City Mar. 30, 2018).
17 We assume the parties’ familiarity with the underlying facts
18 and procedural history.
19 We have reviewed the IJ’s decision as supplemented by
20 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
21 Cir. 2005). We review adverse credibility determinations
22 under a substantial evidence standard, see Hong Fei Gao v.
23 Sessions, 891 F.3d 67, 76 (2d Cir. 2018), and “the
24 administrative findings of fact are conclusive unless any 2 1 reasonable adjudicator would be compelled to conclude to the
2 contrary,” 8 U.S.C. § 1252(b)(4)(B). “Considering the
3 totality of the circumstances, and all relevant factors, a
4 trier of fact may base a credibility determination on . . .
5 the inherent plausibility of the applicant’s or witness’s
6 account, the consistency between the applicant’s or witness’s
7 written and oral statements . . . , the internal consistency
8 of each such statement, [and] the consistency of such
9 statements with other evidence of record . . . without regard
10 to whether an inconsistency, inaccuracy, or falsehood goes to
11 the heart of the applicant’s claim . . . .” 8 U.S.C.
12 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility
13 determination unless, from the totality of the circumstances,
14 it is plain that no reasonable fact-finder could make such an
15 adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534
16 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d
17 at 76. Substantial evidence supports the agency’s
18 determination that Salim was not credible as to his claim of
19 past persecution by members of the Awami League and the police
20 on account of his support for the Bangladesh National Party
21 (“BNP”).
3 1 The agency reasonably relied on several inconsistencies
2 between Salim’s application and testimony regarding alleged
3 attacks. See 8 U.S.C. § 1158(b)(1)(B)(iii); Likai Gao v.
4 Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020.) Salim’s
5 application gave detailed accounts of attacks in October 2001
6 and October 2006, three attacks in January 2009, and two
7 attacks in February 2010. However, he testified that he was
8 attacked for the first time in 2009, did not mention the 2001
9 or 2006 incidents until confronted with the discrepancy on
10 cross-examination, and could not remember anything regarding
11 the 2006 attack even though it allegedly occurred on a
12 historic day and left him unconscious. Moreover, when asked
13 who attacked him in 2001, he named different attackers than
14 those named in his application. And while his written
15 statement described three attacks in January 2009, he
16 testified about only two.
17 The agency also reasonably found that Salim’s documentary
18 evidence did not rehabilitate his credibility and, in some
19 cases, contradicted or raised doubts about the plausibility
20 of his account. 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia
21 Lin, 534 F.3d at 167 (permitting consideration of
4 1 discrepancies between the petitioner’s testimony and letters
2 from third parties); Biao Yang v. Gonzales, 496 F.3d 268, 273
3 (2d Cir. 2007) (“An applicant’s failure to corroborate his or
4 her testimony may bear on credibility, because the absence of
5 corroboration in general makes an applicant unable to
6 rehabilitate testimony that has already been called into
7 question.”). Salim testified that he was hospitalized on
8 February 27, but his doctor’s letter states that he was
9 hospitalized from February 19 to 22. He testified that Awami
10 League members “ransacked” his house in Bangladesh and “burnt
11 down” his family’s furniture and, following his departure,
12 returned many times to his wife’s home and broke furniture.
13 But his wife did not confirm these details, stating only that
14 Awami League members threatened her and came to the house
15 searching for Salim. His mother’s letter describes 2001 and
16 2006 attacks that Salim did not recall in his testimony.
17 Moreover, his mother’s and sister’s letters contained some
18 identical language, suggesting they were not, as he
19 testified, written independently. See Singh v. BIA, 438 F.3d
20 145, 148 (2d Cir. 2006) (per curiam) (upholding adverse
21 credibility determination based in part on “nearly identical
5 1 language in the written affidavits allegedly provided by
2 different people” in support of a petitioner’s claim).
3 The agency also reasonably rejected some of Salim’s
4 testimony as implausible. A finding of implausibility “must
5 be based on more than bald speculation or caprice” but will
6 generally be upheld where it is “tethered to record evidence,
7 and there is nothing else in the record from which a firm
8 conviction of error could properly be derived.” Wensheng Yan
9 v. Mukasey, 509 F.3d 63, 66–67 (2d Cir. 2007) (quotation marks
10 omitted). Salim made a late addition to his claim, alleging
11 that Awami League members assaulted his wife shortly after
12 his hearing before the IJ. The IJ reasonably found this
13 allegation implausible given that Salim did not corroborate
14 it with anything other than a photograph of a woman in a cast,
15 nearly seven years had passed since Salim left Bangladesh,
16 and there was no prior violence against his wife or any event
17 to trigger heightened violence after so many years. Id.
18 Salim argues that faulty interpretation at his merits
19 hearing deprived him of due process because it “create[d]
20 confusion” that led to the IJ finding him not credible. This
21 claim fails because the IJ’s adverse credibility
6 1 determination was primarily based on discrepancies and
2 implausibilities in his testimony, and Salim does not explain
3 how all the problems with his testimony could be attributed
4 to the interpreter. 1 See Garcia-Villeda v. Mukasey, 531 F.3d
5 141, 149 (2d Cir. 2008) (“Parties claiming denial of due
6 process in immigration cases must, in order to prevail, allege
7 some cognizable prejudice fairly attributable to the
8 challenged process.” (quotation marks omitted)).
9 Given the inconsistencies, implausible statements, and
10 lack of reliable corroboration as described above,
11 substantial evidence supports the adverse credibility
12 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Likai Gao,
13 968 F.3d at 145 n.8; Biao Yang, 496 F.3d at 273. That
14 determination is dispositive of asylum, withholding of
1Salim cites interpreter error to challenge the IJ’s finding that he was “hemming and hawing” when he said 1979 and 1989 before landing on 2009 as the year of his first attack. We decline to rely on this finding or on the IJ’s findings regarding a 2012 election and January 9, 2009, attack that are not supported by the hearing transcript. Even crediting the allegation of interpreter error, the other findings provide substantial evidence for the adverse credibility determination. See Likai Gao, 968 F.3d at 145 n.8; Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338–39 (2d Cir. 2006).
7 1 removal, and CAT protection because all three forms of relief
2 were based on the same factual predicate. See Paul v.
3 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 and
6 stays VACATED.
7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, 9 Clerk of Court