08-4595-ag
Ahmed v. Holder
BIA
Elstein, IJ
A073 533 203
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 17 th day of February, two thousand ten.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 JON O. NEWMAN,
9 RALPH K. WINTER,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 SHAMEEM AHMED,
14 Petitioner,
15
16 -v.- 08-4595-ag
17 NAC
18 ERIC H. HOLDER, JR., United States
19 Attorney General, *
20 Respondent.
21 - - - - - - - - - - - - - - - - - - - -X
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder Jr. is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
1
1 FOR PETITIONER: Durga Prasad Bhurtel, Chhetry &
2 Associates, P.C., New York, NY.
3
4 FOR RESPONDENT: Brianne Whelan Cohen, Trial Attorney
5 (Michael F. Hertz, Acting Assistant
6 Attorney General, Civil Division, William
7 C. Peachey, Assistant Director), Office
8 of Immigration Litigation, United States
9 Department of Justice, Office of
10 Immigration Litigation, Washington, D.C.
11
12 UPON DUE CONSIDERATION of this petition for review of a
13 decision of the Board of Immigration Appeals (“BIA”), it is
14 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
15 review is GRANTED.
16
17 Petitioner Shameem Ahmed, a native and citizen of
18 Bangladesh, seeks review of an August 19, 2008 order of the
19 BIA affirming the October 10, 2006 decision of Immigration
20 Judge (“IJ”) Annette S. Elstein, denying his application for
21 asylum, withholding of removal, and relief under the
22 Convention Against Torture (“CAT”). In re Shameem Ahmed,
23 No. A073 533 203 (B.I.A. Aug. 19, 2008), aff’g No. A073 533
24 203 (Immig. Ct. N.Y. City Oct. 10, 2006). We assume the
25 parties’ familiarity with the underlying facts and
26 procedural history in this case.
27
28 When the BIA summarily affirms the decision of the IJ
29 without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4),
30 this Court reviews the IJ’s decision as the final agency
31 determination, see Shunfu Li v. Mukasey, 529 F.3d 141, 146
32 (2d Cir. 2008). We review the agency’s factual findings
33 under the substantial evidence standard. See 8 U.S.C. §
34 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.
35 2008). Questions of law and the application of law to
36 undisputed fact are reviewed de novo. See Salimatou Bah v.
37 Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
38
39 The IJ’s adverse credibility finding was based
40 primarily on a letter summarizing the findings of a consular
41 investigation team (“consular report”). The consular report
42 concluded that a medical document submitted by Ahmed in
43 support of his application was not genuine. According to
44 the consular report, the medical document did not conform to
45 the format of the hospital’s admissions certificate.
46 Although the hospital had a patient record for Ahmed, that
47 record indicated Ahmed was admitted two days earlier than he
2
1 had alleged and that he had been treated for “three
2 perforations” rather than injuries related to an alleged
3 beating.
4
5 Generally, an IJ may draw a negative inference
6 regarding the authenticity of the remainder of an
7 applicant’s uncorroborated evidence when it is established
8 that the applicant submitted a fraudulent document. See
9 Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007). In
10 this case, however, the consular report is insufficiently
11 reliable to support an adverse credibility determination
12 under the substantial evidence standard. Zhen Nan Lin v.
13 U.S. Dep’t of Justice, 459 F.3d 255, 270-72 (2d Cir. 2006).
14 The following “non-exhaustive” factors “provide an
15 analytical framework for assessing the reliability of an
16 investigative report:” “(i) the identity and qualifications
17 of the investigator(s); (ii) the objective and extent of the
18 investigation; and (iii) the methods used to verify the
19 information discovered.” Id. at 271 (relying on Memorandum
20 from Bo Cooper, INS General Counsel, to Jeffrey Weiss, INS
21 Director of Int’l Affairs, Confidentiality of Asylum
22 Applications and Overseas Verification of Documents and
23 Application Information 6-7, (June 21, 2001)).
24
25 The consular report sufficiently describes the
26 objective and extent of the consular investigation, thereby
27 satisfying the second factor. But the consular report
28 presents no information regarding the identity or
29 qualifications of the “consular investigation team.” See
30 Zhen Nan Lin, 459 F.3d at 271 (finding insufficiency where a
31 consular report included “the names and titles of the
32 investigators,” but lacked any “information regarding their
33 competency or qualifications”). It is merely a letter from
34 Nadia Tongour, Director of the Office of Country Reports and
35 Asylum Affairs, summarizing the findings of unidentified
36 persons at the consulate. The consular report states that
37 the investigation team “spoke with a senior hospital
38 official” and “examine[d] admissions records.” The consular
39 report neither includes the name, title, or qualifications
40 of this senior hospital official nor does it reveal the
41 nature of the hospital’s record-keeping. This description
42 is insufficiently detailed to explain “the methods used to
43 verify the information discovered.” Id.
44
45 The IJ’s adverse credibility determination is dependent
46 on the consular report. The IJ did observe that “[t]he mere
47 fact of the conflict of dates [regarding Ahmed’s hospital
3
1 admission and service as the Jatiyo Party publicity head],
2 regardless of whether the [medical document] was false or
3 not, is sufficient to put [Ahmed’s] credibility at risk.”
4 But this observation falls short of an adverse credibility
5 determination independent of the consular report. The
6 discrepancy in the date of Ahmed’s hospital admission arises
7 out of the consular report. The discrepancy in the date of
8 Ahmed’s service as the Jatiyo Party publicity head is too
9 minor, even when aggregated with other discrepancies, to
10 support an adverse credibility determination. See Diallo v.
11 INS, 232 F.3d 279, 288 (2d Cir. 2000) (“Where an applicant’s
12 testimony is generally consistent, rational, and believable,
13 disparities . . . need not be fatal, especially if the
14 errors are relatively minor and isolated.”). The IJ’s
15 adverse credibility determination thus cannot survive review
16 absent reliance on the consular report, and remand is
17 therefore appropriate. See Li Hua Lin v. U.S. Dep’t of
18 Justice, 453 F.3d 99, 111 (2d Cir. 2006) (“The more central
19 errant finding was to the IJ’s adverse credibility
20 determination, naturally, the less confident we can be that
21 remand would be futile.”).
22
23 No other ground permits denial of the petition. An
24 applicant who establishes past persecution on account of a
25 protected ground is entitled to a presumption that he has a
26 well-founded fear of future persecution on the same basis;
27 the government bears the burden of rebutting this
28 presumption by showing that changed circumstances render the
29 applicant’s fear unfounded. See Baba v. Holder, 569 F.3d
30 79, 86 (2d Cir. 2009) (“The law is clear that a showing of
31 past persecution shifts the burden to the government on the
32 question of the petitioner’s well-founded fear of future
33 persecution.”). The IJ observed that even if Ahmed’s
34 testimony had been credible, Ahmed was not entitled to
35 relief because of changed circumstances in Bangladesh. The
36 IJ may have implicitly assumed that Ahmed established past
37 persecution for purposes of her changed circumstances
38 analysis, but she certainly did not make that assumption
39 explicit. The resulting ambiguity precludes this Court from
40 evaluating whether the IJ gave Ahmed the benefit of the
41 presumption of a well-founded fear of future persecution.
42 Remand is therefore appropriate. See Beskovic v. Gonzales,
43 467 F.3d 223, 227 (2d Cir. 2006) (“Whether or not Beskovic
44 is entitled to a presumption of future persecution requires
45 a determination . . . of whether he suffered past
46 persecution. Because we cannot determine whether the IJ
4
1 correctly assessed Beskovic’s claim of past persecution, we
2 are stymied.”).
3
4 For the foregoing reasons, the petition for review is
5 GRANTED and the case is REMANDED to the agency for further
6 proceedings consistent with this order. On remand, the
7 agency may do one or more of the following: (i) allow the
8 record to be reopened for further fact-finding related to
9 the consular report; (ii) evaluate the record and any
10 additional facts added to the record for discrepancies not
11 relied on by the IJ, but sufficient to give rise to an
12 adverse credibility determination independent of the
13 consular report; and (iii) to assume past persecution,
14 accord Ahmed the benefit of the presumption of a well-
15 founded fear of future persecution, and determine whether
16 the government has sustained its burden of demonstrating
17 changed circumstances. As we have completed our review, any
18 stay of removal that the Court previously granted in this
19 petition is VACATED, and any pending motion for a stay of
20 removal in this petition is DISMISSED as moot. Any pending
21 request for oral argument in this petition is DENIED in
22 accordance with Federal Rule of Appellate Procedure 34(a)(2)
23 and Second Circuit Local Rule 34.1(b).
24
25
26 FOR THE COURT:
27 CATHERINE O’HAGAN WOLFE, CLERK
28
29
30
5