Taohid Hasnet Akash v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 28, 2021
• Docket: 20-12378
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-12378 Non-Argument Calendar ________________________

Agency No. A203-653-600

TAOHID HASNET AKASH,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(April 28, 2021)

Before ROSENBAUM, LAGOA, and BRASHER, Circuit Judges.

PER CURIAM:

Taohid Hasnet Akash seeks review of the Board of Immigration Appeals’s

(“BIA”) order affirming the immigration judge’s denial of his application for USCA11 Case: 20-12378 Date Filed: 04/28/2021 Page: 2 of 13

asylum, withholding of removal under the Immigration and Nationality Act (“INA”),

and protection under the United Nations Convention Against Torture (“CAT”).

Specifically, he challenges the immigration judge’s adverse credibility finding,

arguing that the inconsistencies in his testimony cited by the immigration judge were

only minor disparities, most of which were cleared up upon further questioning. We

disagree. Because substantial evidence supports the adverse credibility

determination, we deny Akash’s petition for review.

I. FACTUAL AND PROCEDURAL HISTORY

Akash, a native and citizen of Bangladesh, unlawfully entered the United

States in June 2019 by swimming across the Rio Grande River from Mexico, where

he was apprehended by the United States Border Patrol. Akash informed the Border

Patrol agents that he had left Bangladesh because he was discriminated against on

the basis of his religion by the Bangladeshi government and other religious groups.

Based on this allegation, the agents referred his case to an asylum officer for a

credible fear interview.

During his credible fear interview, Akash stated that he was a member of the

Liberal Democratic Party (“LDP”) and was persecuted for his political beliefs by

members of the Awami League, which is the current political party in power in

Bangladesh. He claimed that he received many threats from Awami League

members and referenced three specific attacks that he endured. On June 25, 2018,

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Awami League members attacked him. On November 15, 2018, Akash said that he

was “severely” attacked by five Awami League members, who punched him in the

ear and broke his leg. He recognized one of the attackers as an Awami League leader

who worked with his cousin and lived down the road from him. He was hospitalized

for three days following this attack. On November 18, 2018, after he was discharged

from the hospital, Akash went to the police station to press charges against the

members who attacked him. But the officers refused to accept his complaint and

told him to leave. After he had returned home, Awami League members who had

heard that he had attempted to report the prior incident to the police broke into the

gate of Akash’s residence, but they could not find him.

When asked by the asylum officer about his claims of religious persecution,

Akash answered that he never mentioned religion to the Border Patrol agents and

that his political beliefs were the only cause of his harm in his native Bangladesh.

Following the interview, on September 17, 2019, the Department of

Homeland Security (“DHS”) initiated removal proceedings against Akash. In the

Notice to Appear, DHS charged removability under 8 U.S.C. § 1182(a)(7)(A)(i)(I),

as an alien who at the time of his application for admission did not have a valid visa

or an entry document, and under 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in

the United States without being admitted or paroled. Akash, through counsel,

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admitted to the allegations in the Notice to Appear and conceded his removability.

He then applied for asylum and withholding of removal under the INA and CAT.

During his hearing, Akash claimed that he came to the United States because

he feared for his life in Bangladesh due to his political preferences and his

membership in the LDP. He claimed that he was first attacked by the Awami League

on October 26, 2018, when he was attacked by two Awami League members as he

left a LDP meeting. During the attack, he was pushed, slapped, and punched,

resulting in a bloody lip and nose. He said that the attackers knew about his political

preferences and membership because his cousin was the president of the Liberal

Democratic Party in his “union area.” But he later claimed that his cousin was

instead a member of the Awami League. He then claimed that it was actually his

brother who orchestrated the attack on him because he was angry with Akash. But

he later clarified, explaining that it was his “cousin brother”—a cousin who he also

calls his brother. When the immigration judge asked about these contradictions,

Akash replied that he was nervous.

Akash then testified about the attacks on November 15 and 18, 2018. His

testimony regarding these two attacks was largely the same as his statements during

his credible fear interview. He claimed that he knew two of his attackers because

they hung out with his cousin. He then testified that his aunt told him that, on

November 24, 2018, some individuals came to her house looking for him. And he

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had since been told that Awami League members still sometimes come to his house

looking for him.

On cross examination, DHS counsel questioned Akash about various

inconsistencies in his testimony and his prior interviews, including why he had not

told the asylum officer about the October 26, 2018, attack. Akash responded that he

had mentioned getting hurt on October 26 and that he had been attacked three times.

When pressed on his claim to the asylum officer that the first attack was on June 25,

2018, he replied that he did not understand. Finally, when asked about his initial

claim to Border Patrol agents that he was persecuted for his religion, Akash

answered that he was never questioned upon his arrival and that his first interview

was with the asylum officer.

After Akash’s testimony, the immigration judge issued an oral decision

denying his application for asylum, withholding of removal, and CAT protection.

The immigration judge determined that Akash was not credible, citing to several

inconsistencies throughout his testimony and other interviews, including: (1) the

identity of and his relationship to the main persecutor in Bangladesh; (2) the political

membership of that person; (3) the number and nature of the attacks that he suffered

in Bangladesh; (4) the nature and severity of the injuries that resulted from those

attacks; (5) the dates of those attacks; and (6) the underlying reason for the alleged

persecution. The immigration judge further noted that Akash was evasive and

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nonresponsive throughout his interviews and the proceedings and that he failed to

provide any corroborating evidence to rectify the inconsistencies that were raised.

Akash appealed the immigration judge’s determination to the BIA. He argued

that the inconsistency in the dates of the attacks was only minor, that he corrected

all other inconsistencies with his testimony, and that his statements relating to the

heart of his claims were always consistent. He also raised a claim of ineffective

assistance of counsel.

On May 29, 2020, the BIA affirmed and dismissed Akash’s appeal. The BIA

first denied his ineffective assistance claim, finding that he had failed to comply with

the requisite procedural requirements to raise the claim. Additionally, the BIA

explained that even if he had complied with those requirements, he failed to

demonstrate evidence of prejudice.

The BIA then held that the immigration judge’s adverse credibility

determination was not erroneous, finding that the immigration judge properly

considered the totality of the circumstances as Akash was evasive and his testimony

was inconsistent. Specifically, the BIA noted that Akash was inconsistent about the

root cause of the alleged persecution—whether religious or political—about the

nature and severity of injuries he suffered at the hands of the Awami League

members, about the dates of his attacks, and about his main persecutor in

Bangladesh—how he was related to Akash and whether he was a member of Akash’s

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own party or the ruling party. The BIA then noted that Akash never challenged or

addressed the significant discrepancy between the record evidence of his interview

with Border Patrol evidence and his claim that he was never interviewed. Based on

these inconsistencies and Akash’s nonresponsive demeanor, the BIA found Akash

to not be a credible witness. As such, and because Akash had not pointed to any

evidence in the record “which would independently establish his eligibility for

asylum, withholding of removal, or protection under the [CAT] in the absence of

credible testimony,” the BIA agreed with the immigration judge that Akash was not

eligible for asylum, withholding of removal, or CAT protection. This timely appeal

ensued.

II. STANDARD OF REVIEW

“We review the BIA’s decision as the final judgment, unless the BIA

expressly adopted the [immigration judge’s] decision.” Gonzalez v. U.S. Att’y Gen.,

820 F.3d 399, 403 (11th Cir. 2016). To the extent that the BIA agrees with and

adopts the immigration judge’s reasoning, as is the case here, we review both

decisions as to the agreement. Id.

We review factual and credibility determinations under the substantial

evidence test and conclusions of law de novo. Id.; Chen v. U.S. Att’y Gen., 463 F.3d

1228, 1230–31 (11th Cir. 2006). Under the substantial evidence test, we will affirm

the agency’s “decision if it is supported by reasonable, substantial, and probative

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evidence on the record considered as a whole.” Sepulveda v. U.S. Att’y Gen., 401

F.3d 1226, 1230 (11th Cir. 2005) (quoting Al Najjar v. Ashcroft, 257 F.3d 1262,

1284 (11th Cir. 2001)). We only reverse an agency’s decision when “the evidence

‘compels’ a reasonable fact finder to find otherwise.” Id. (quoting INS v. Elias-

Zacarias, 502 U.S. 478, 481 n.1 (1992)). Under substantial evidence review, “[w]e

view the record evidence in the light most favorable to the agency’s decision and

draw all reasonable inferences in favor of that decision.” Kazemzadeh v. U.S. Att’y

Gen., 577 F.3d 1341, 1351 (11th Cir. 2009) (quoting Adefemi v. Ashcroft, 386 F.3d

1022, 1027 (11th Cir. 2004) (en banc)). Administrative findings cannot be reversed

simply because “the record may support a contrary conclusion.” Id. (quoting

Adefemi, 386 F.3d at 1027).

III. ANALYSIS

On appeal, Akash argues that the immigration judge’s adverse credibility

determination was not supported by substantial evidence. Specifically, Akash

argues that the basis of the determination was merely minor inconsistencies that did

not go to the heart of his claim and most of which were corrected, resulting in

coherent, cogent, and consistent testimony. As such, according to Akash, his

testimony was credible, and he therefore met his burden to establish eligibility for

relief from removal.

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The Attorney General may grant asylum to an alien who meets the INA’s

definition of a “refugee.” See INA § 208(b)(1)(A), 8 U.S.C. § 1158(b)(1)(A). A

refugee is:

any person who is outside any country of such person’s nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion . . . .

INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The applicant bears the burden of

proving that he is a refugee. INA § 208(b)(1)(B)(i), 8 U.S.C. § 1158(b)(1)(B)(i).

Using specific and credible evidence, an asylum applicant must demonstrate either

past persecution on account of a statutorily protected ground or a well-founded fear

of future persecution on account of such protected ground. Ruiz v. U.S. Att’y Gen.,

440 F.3d 1247, 1257 (11th Cir. 2006). Past persecution requires an applicant to

prove that he was persecuted and that it was based on a protected

ground. Kazemzadeh, 577 F.3d at 1351.

“If an alien’s testimony is credible, it may be sufficient, without

corroboration, to satisfy his burden of proof in establishing his eligibility for relief

from removal.” Chen, 463 F.3d at 1231. But, at the same time, the “denial of

asylum relief . . . can be supported solely by an adverse credibility determination,

especially if the alien fails to produce corroborating evidence.” Id.

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A credibility determination may be based on all relevant factors and the

totality of the circumstances, including: (1) the applicant’s demeanor, candor, and

responsiveness; (2) the plausibility of the applicant’s account; (3) the consistency

between the applicant’s written and oral statements; (4) the internal consistency of

each statement; (5) the consistency of the applicant’s statements with other record

evidence; and (6) any inaccuracies or falsehoods in statements, regardless of whether

any inconsistency, inaccuracy, or falsehood touches the heart of the applicant’s

claim. INA § 208(b)(1)(B)(iii), 8 U.S.C. § 1158(b)(1)(B)(iii). In making an adverse

credibility determination, the immigration judge must give specific and cogent

reasons, at which point, the burden shifts to the applicant to demonstrate that the

decision was not supported by such specific, cogent reasons or not based on

substantial evidence. Chen, 463 F.3d at 1231. Tenable explanations for any

inconsistencies alone may not be sufficient to compel reversal of an adverse

credibility determination. See id. at 1233.

Here, substantial evidence supports the immigration judge’s adverse

credibility determination. As noted by the BIA, several inconsistencies existed that

cast doubt on Akash’s testimony and credibility. Significantly, Akash was

inconsistent about the dates of the attacks and about the root cause of the alleged

persecution in Bangladesh. At the border, he told officers that he was persecuted

based on his religious beliefs, but in his interview with the asylum officer and during

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his testimony, he stated that he was persecuted for his political views. He was further

inconsistent about the nature and severity of injuries he suffered at the hands of the

Awami League members—he told the asylum officer only about his leg injury, but

during his testimony he also brought up a severe ear injury that he received from the

members. He was also inconsistent about the political membership of his main

persecutor as well as inconsistent about their relationship. There were also other

issues with Akash’s testimony beyond the inconsistencies. Contrary to Akash’s

contention, the immigration judge did consider his demeanor, specifically as it

related to testimony about his ear injury. The immigration judge described Akash

as evasive and nonresponsive.

Akash argues that these inconsistencies are only “minor” and merely “small

disparities” that do not speak “to the heart of the asylum claim.” But this argument

ignores the applicable statutory standard, which permits a “trier of fact [to] base a

credibility determination on . . . any inaccuracies or falsehoods in [the applicant’s]

statements, without regard to whether an inconsistency, inaccuracy, or falsehood

goes to the heart of the applicant’s claim, or any other relevant factor.”

§ 1158(b)(1)(B)(iii) (emphasis added); see also Chen, 463 F.3d at 1233. Moreover,

we reject Akash’s assertion that the inconsistencies noted can be characterized as

“minor” or as falling outside the heart of his claims. The inconsistencies speak to

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the root cause of the persecution and the timeline of the events that occurred—two

significant aspects of Akash’s claims.

Additionally, although Akash’s explanations for some of the inconsistencies

are tenable, “we cannot say, especially given the relative lack of corroborating

evidence, that these explanations would compel a reasonable fact finder to reverse

the [immigration judge’s] credibility determination.” See Chen, 463 F.3d at 1233.

And Akash provided no explanation for two of the more significant

inconsistencies—his differing statements about whether the persecution resulted

from his religious beliefs or his political views and his inconsistent testimony related

to the timing and severity of the attacks. Because the adverse credibility

determination is supported by substantial evidence and because Akash submitted no

corroborating evidence in support of his claims, he has failed to meet his burden of

proof for relief. Substantial evidence supports the BIA and immigration judge’s

denial of asylum.

Further, substantial evidence supports the BIA and immigration judge’s

denials of withholding of removal and CAT protection. The standards of proof that

the applicant bears to demonstrate eligibility for withholding of removal and for

protection under CAT are higher than that for asylum. See Sepulveda, 401 F.3d

at 1232 (explaining that an alien seeking withholding of removal “bears the burden

of demonstrating that it is ‘more likely than not’ [he] will be persecuted or tortured

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upon being returned to [his] country,” based on a protected ground (quoting Fahim

v. U.S. Att’y Gen., 278 F.3d 1216, 1218 (11th Cir. 2002)); Reyes-Sanchez v. U.S.

Att’y Gen., 369 F.3d 1239, 1242 (11th Cir. 2004) (stating that, for CAT relief, “the

burden of proof is on the applicant . . . to establish that it is more likely than not that

he . . . would be tortured if removed to the proposed country of removal” (quoting 8

C.F.R. § 208.16(c)(2)). Because Akash was unable to meet his burden to prove that

he was eligible for asylum, his claims for withholding of removal and CAT relief

likewise fail. We therefore deny his petition.

IV. CONCLUSION

Because the immigration judge’s adverse credibility determination is

supported by substantial evidence, we deny Akash’s petition for review.

PETITION DENIED.