16-49 Ullah v. Garland BIA Gordon-Uruakpa, IJ A087 783 561 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 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 20th day of September, two thousand twenty- 5 two. 6 7 PRESENT: 8 GUIDO CALABRESI, 9 MICHAEL H. PARK, 10 ALISON J. NATHAN, 11 Circuit Judges. 12 _____________________________________ 13 14 NAEEM ULLAH, 15 Petitioner, 16 17 v. 16-49 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Visuvanathan Rudrakumaran, Esq., 25 New York, NY. 26 27 FOR RESPONDENT: Brian M. Boynton, Acting Assistant 28 Attorney General; Anthony C. 1 Payne, Assistant Director; Jeffery 2 R. Leist, Senior Litigation 3 Counsel, Office of Immigration 4 Litigation, United States 5 Department of Justice, Washington, 6 DC.
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Naeem Ullah, a native and citizen of Pakistan,
12 seeks review of a December 9, 2015 decision of the BIA
13 affirming a July 10, 2014 decision of an Immigration Judge
14 (“IJ”) denying Ullah’s application for asylum, withholding of
15 removal, and protection under the Convention Against Torture
16 (“CAT”). In re Naeem Ullah, No. A087 783 561 (B.I.A. Dec.
17 9, 2015), aff’g No. A087 783 561 (Immig. Ct. N.Y.C. July 10,
18 2014). We assume the parties’ familiarity with the
19 underlying facts and procedural history.
20 We have reviewed the IJ’s decision as supplemented by
21 the BIA. See Xian Tuan Ye v. DHS, 446 F.3d 289, 293, 296 (2d
22 Cir. 2006). The applicable standards of review are well
23 established. See 8 U.S.C. § 1252(b)(4)(B) (“the
24 administrative findings of fact are conclusive unless any
2 1 reasonable adjudicator would be compelled to conclude to the
2 contrary”); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d
3 Cir. 2018) (reviewing adverse credibility determination for
4 substantial evidence); Pierre v. Holder, 588 F.3d 767, 772
5 (2d Cir. 2009) (providing that constitutional claims and
6 questions of law are reviewed de novo).
7 “Considering the totality of the circumstances, and all
8 relevant factors, a trier of fact may base a credibility
9 determination on the . . . consistency between the applicant’s
10 or witness’s written and oral statements . . . , the internal
11 consistency of each such statement, [and] the consistency of
12 such statements with other evidence of record . . . without
13 regard to whether an inconsistency, inaccuracy, or falsehood
14 goes to the heart of the applicant’s claim, or any other
15 relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer
16 . . . to an IJ’s credibility determination unless . . . it is
17 plain that no reasonable fact-finder could make such an
18 adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534
19 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d
20 at 76.
3 1 Substantial evidence supports the adverse credibility
2 determination here. Ullah alleged that members of an
3 extremist Islamic group killed his father, sister, and
4 brother-in-law, and later shot him in the leg on account of
5 his family belonging to the Ahmadi sect of Islam. The IJ
6 reasonably relied on inconsistencies about Ullah’s alleged
7 shooting, including when it occurred, why he was in Pakistan
8 at that time, why his passport did not reflect that he was in
9 Pakistan at the time, and who reported the shooting to the
10 police. See 8 U.S.C § 1158(b)(1)(B)(iii). Ullah failed to
11 rehabilitate this testimony with reliable corroboration.*
12 See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)
13 (“An applicant’s failure to corroborate his . . . testimony
14 may bear on credibility, because the absence of corroboration
* Ullah submitted a police report related to the shooting and a handwritten discharge slip from a Pakistani hospital, which would have corroborated his presence in Pakistan at the time of the shooting and that he received medical attention. But the agency was not required to credit these documents over the passport, particularly given Ullah’s inconsistent testimony about who reported the incident to the police. See Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) (“We generally defer to the agency’s evaluation of the weight to be afforded an applicant’s documentary evidence.”).
4 1 in general makes an applicant unable to rehabilitate
2 testimony that has already been called into question.”).
3 In addition, Ullah’s asylum application and testimony
4 were inconsistent with an earlier visa application as to
5 whether he had served in the military in Pakistan and as to
6 what countries he had previously travelled. He also omitted
7 an arrest in the United States from his asylum application.
8 See Xiu Xia Lin, 534 F.3d at 167 (explaining that the agency
9 “may rely on any inconsistency . . . as long as the ‘totality
10 of circumstances’ establishes that an asylum applicant is not
11 credible”). The IJ did not err in relying on the omission
12 because the application form instructs the applicant to list
13 any arrests, and Ullah’s contradictory explanations—i.e.,
14 that the arrest occurred after he filed the application and
15 that his attorney advised him that the arrest was irrelevant
16 because the charges were dismissed—do not resolve the
17 inconsistency. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d
18 Cir. 2005) (“A petitioner must do more than offer a plausible
19 explanation for his inconsistent statements to secure relief;
20 he must demonstrate that a reasonable fact-finder would be
21 compelled to credit his testimony.” (cleaned up)). Ullah
5 1 also argues that the agency should not have relied on the
2 inconsistencies because he has memory issues as a result of
3 a stroke. The agency was not required to accept this
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16-49 Ullah v. Garland BIA Gordon-Uruakpa, IJ A087 783 561 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 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 20th day of September, two thousand twenty- 5 two. 6 7 PRESENT: 8 GUIDO CALABRESI, 9 MICHAEL H. PARK, 10 ALISON J. NATHAN, 11 Circuit Judges. 12 _____________________________________ 13 14 NAEEM ULLAH, 15 Petitioner, 16 17 v. 16-49 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Visuvanathan Rudrakumaran, Esq., 25 New York, NY. 26 27 FOR RESPONDENT: Brian M. Boynton, Acting Assistant 28 Attorney General; Anthony C. 1 Payne, Assistant Director; Jeffery 2 R. Leist, Senior Litigation 3 Counsel, Office of Immigration 4 Litigation, United States 5 Department of Justice, Washington, 6 DC.
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Naeem Ullah, a native and citizen of Pakistan,
12 seeks review of a December 9, 2015 decision of the BIA
13 affirming a July 10, 2014 decision of an Immigration Judge
14 (“IJ”) denying Ullah’s application for asylum, withholding of
15 removal, and protection under the Convention Against Torture
16 (“CAT”). In re Naeem Ullah, No. A087 783 561 (B.I.A. Dec.
17 9, 2015), aff’g No. A087 783 561 (Immig. Ct. N.Y.C. July 10,
18 2014). We assume the parties’ familiarity with the
19 underlying facts and procedural history.
20 We have reviewed the IJ’s decision as supplemented by
21 the BIA. See Xian Tuan Ye v. DHS, 446 F.3d 289, 293, 296 (2d
22 Cir. 2006). The applicable standards of review are well
23 established. See 8 U.S.C. § 1252(b)(4)(B) (“the
24 administrative findings of fact are conclusive unless any
2 1 reasonable adjudicator would be compelled to conclude to the
2 contrary”); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d
3 Cir. 2018) (reviewing adverse credibility determination for
4 substantial evidence); Pierre v. Holder, 588 F.3d 767, 772
5 (2d Cir. 2009) (providing that constitutional claims and
6 questions of law are reviewed de novo).
7 “Considering the totality of the circumstances, and all
8 relevant factors, a trier of fact may base a credibility
9 determination on the . . . consistency between the applicant’s
10 or witness’s written and oral statements . . . , the internal
11 consistency of each such statement, [and] the consistency of
12 such statements with other evidence of record . . . without
13 regard to whether an inconsistency, inaccuracy, or falsehood
14 goes to the heart of the applicant’s claim, or any other
15 relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer
16 . . . to an IJ’s credibility determination unless . . . it is
17 plain that no reasonable fact-finder could make such an
18 adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534
19 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d
20 at 76.
3 1 Substantial evidence supports the adverse credibility
2 determination here. Ullah alleged that members of an
3 extremist Islamic group killed his father, sister, and
4 brother-in-law, and later shot him in the leg on account of
5 his family belonging to the Ahmadi sect of Islam. The IJ
6 reasonably relied on inconsistencies about Ullah’s alleged
7 shooting, including when it occurred, why he was in Pakistan
8 at that time, why his passport did not reflect that he was in
9 Pakistan at the time, and who reported the shooting to the
10 police. See 8 U.S.C § 1158(b)(1)(B)(iii). Ullah failed to
11 rehabilitate this testimony with reliable corroboration.*
12 See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)
13 (“An applicant’s failure to corroborate his . . . testimony
14 may bear on credibility, because the absence of corroboration
* Ullah submitted a police report related to the shooting and a handwritten discharge slip from a Pakistani hospital, which would have corroborated his presence in Pakistan at the time of the shooting and that he received medical attention. But the agency was not required to credit these documents over the passport, particularly given Ullah’s inconsistent testimony about who reported the incident to the police. See Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) (“We generally defer to the agency’s evaluation of the weight to be afforded an applicant’s documentary evidence.”).
4 1 in general makes an applicant unable to rehabilitate
2 testimony that has already been called into question.”).
3 In addition, Ullah’s asylum application and testimony
4 were inconsistent with an earlier visa application as to
5 whether he had served in the military in Pakistan and as to
6 what countries he had previously travelled. He also omitted
7 an arrest in the United States from his asylum application.
8 See Xiu Xia Lin, 534 F.3d at 167 (explaining that the agency
9 “may rely on any inconsistency . . . as long as the ‘totality
10 of circumstances’ establishes that an asylum applicant is not
11 credible”). The IJ did not err in relying on the omission
12 because the application form instructs the applicant to list
13 any arrests, and Ullah’s contradictory explanations—i.e.,
14 that the arrest occurred after he filed the application and
15 that his attorney advised him that the arrest was irrelevant
16 because the charges were dismissed—do not resolve the
17 inconsistency. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d
18 Cir. 2005) (“A petitioner must do more than offer a plausible
19 explanation for his inconsistent statements to secure relief;
20 he must demonstrate that a reasonable fact-finder would be
21 compelled to credit his testimony.” (cleaned up)). Ullah
5 1 also argues that the agency should not have relied on the
2 inconsistencies because he has memory issues as a result of
3 a stroke. The agency was not required to accept this
4 explanation because he was able to testify in detail, he
5 complained of memory problems only when confronted with an
6 inconsistency, and the issue with the visa application and
7 the omission of his arrest from his asylum application
8 predated the stroke. Id.
9 The discrepancies between Ullah’s statement, testimony,
10 and the documentary evidence, as well as the lack of other
11 reliable corroboration, provide substantial evidence for the
12 adverse credibility determination. See 8 U.S.C.
13 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 166–67; Biao
14 Yang, 496 F.3d at 273; see also Likai Gao v. Barr, 968 F.3d
15 137, 145 n.8 (2d Cir. 2020) (“[E]ven a single inconsistency
16 might preclude an alien from showing that an IJ was compelled
17 to find him credible. Multiple inconsistencies would so
18 preclude even more forcefully.”). This determination is
19 dispositive of asylum, withholding of removal, and CAT relief
20 because all three forms of relief are based on the same
6 1 discredited factual predicate. See Paul v. Gonzales, 444
2 F.3d 148, 156–57 (2d Cir. 2006).
3 Finally, we are not persuaded by Ullah’s argument that
4 the agency deprived him of due process by failing to hold a
5 competency hearing or relying on credibility concerns without
6 adequately considering the effect of his stroke on his memory.
7 First, Ullah did not request a competency hearing or exhaust
8 a due process argument before the agency. See Lin Zhong v.
9 U.S. Dep’t of Justice, 480 F.3d 104, 123 (2d Cir. 2007)
10 (“[U]sually . . . issues not raised to the BIA will not be
11 examined by the reviewing court.”). Second, in any event,
12 Ullah has not demonstrated a due process violation. To state
13 a due process claim, Ullah had to show that he did not have
14 a “full and fair opportunity to present [his] claims.” Li
15 Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 104 (2d Cir.
16 2006). He has not shown he was deprived of such an
17 opportunity as he declined the IJ’s offer of a continuance,
18 he decided to proceed in consultation with counsel, and he
19 was given an opportunity to present additional evidence after
20 the hearing. Id.; Matter of M-A-M-, 25 I. & N. Dec. 474, 479
21 (B.I.A. 2011) (“[A] lack of competency in civil immigration
7 1 proceedings does not mean that the hearing cannot go forward;
2 rather, procedural fairness is required.”).
3 For the foregoing reasons, the petition for review is
4 DENIED. All pending motions and applications are DENIED and
5 stays VACATED.
6 FOR THE COURT: 7 Catherine O’Hagan Wolfe, 8 Clerk of Court