Hossain v. Yates

15-729 Hossain v. Yates BIA Christensen, IJ A201 291 732 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 for 2 the Second Circuit, held at the Thurgood Marshall United States 3 Courthouse, 40 Foley Square, in the City of New York, on the 4 27th day of January , two thousand seventeen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 PIERRE N. LEVAL, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ 12 13 AMIR HOSSAIN, 14 Petitioner, 15 16 v. 15-729 17 NAC 18 SALLY Q. YATES, ACTING UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent*. 21 _____________________________________ 22 23 FOR PETITIONER: Salim Sheikh, New York, N.Y. 24 25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 26 Assistant Attorney General; Anthony 27 C. Payne, Assistant Director; Lauren 28 E. Fascett, Trial Attorney; Abigail 29 E. Leach, Law Clerk, Office of * Pursuant to Federal Rule of Appellate Procedure 43(c) (2), Acting Attorney General Sally Q. Yates is automatically substituted for former Attorney General Loretta E. Lynch as Respondent. 1 Immigration Litigation, United 2 States Department of Justice, 3 Washington, D.C. 4 5 6 UPON DUE CONSIDERATION of this petition for review of a Board 7 of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, 8 ADJUDGED, AND DECREED that the petition for review is DENIED. 9 Petitioner Amir Hossain, a native and citizen of Bangladesh, 10 seeks review of a February 18, 2015, decision of the BIA, 11 affirming a January 9, 2013, decision of an Immigration Judge 12 (“IJ”) denying Hossain’s application for asylum, withholding 13 of removal, and relief under the Convention Against Torture 14 (“CAT”). In re Amir Hossain, No. A201 291 732 (B.I.A. Feb. 18, 15 2015), aff’g No. A201 291 732 (Immig. Ct. N.Y. City Jan. 9, 2013). 16 We assume the parties’ familiarity with the underlying facts 17 and procedural history in this case. 18 Under the circumstances of this case, we have reviewed both 19 the BIA’s and IJ’s decisions. See Yun-Zui Guan v. Gonzales, 432 20 F.3d 391, 394 (2d Cir. 2005). The applicable standards of review 21 are well established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. 22 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). 23 The governing REAL ID Act provides that the agency may, 24 “[c]onsidering the totality of the circumstances,” base a 25 credibility finding on an asylum applicant’s “demeanor, candor, 2 1 or responsiveness,” the plausibility of his account, and 2 inconsistencies in his statements and other record evidence 3 “without regard to whether” those inconsistencies go “to the 4 heart of the applicant’s claim.” 8 U.S.C. 5 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. “We 6 defer . . . to an IJ’s credibility determination unless . . . 7 it is plain that no reasonable fact-finder could make such an 8 adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. 9 Further, “[a] petitioner must do more than offer a plausible 10 explanation for his inconsistent statements to secure relief; 11 he must demonstrate that a reasonable fact-finder would be 12 compelled to credit his testimony.” Majidi v. Gonzales, 430 13 F.3d 77, 80 (2d Cir. 2005) (internal quotation marks and 14 citations omitted). Substantial evidence supports the agency’s 15 determination that Hossain was not credible. 16 The agency reasonably relied on inconsistencies between 17 Hossain’s testimony and his border patrol interview. We 18 “exercise[s] caution” when reviewing border patrol interview 19 statements “because such interviews may be perceived . . . as 20 coercive or threatening . . . [and] aliens may not be entirely 21 forthcoming in the initial interview.” See Yun-Zui Guan, 432 22 F.3d at 396 (internal quotation marks and citations omitted). 23 The agency may nevertheless rely on border patrol interview 3 1 statements when assessing credibility if the interview record 2 “bears hallmarks of accuracy and reliability.” Ming Zhang v. 3 Holder, 585 F.3d 715, 721 (2d Cir. 2009) (quoting Ramsameachire 4 v. Ashcroft, 357 F.3d 169, 181 (2d Cir. 2004)). As the agency 5 observed, those hallmarks were present here: a Bengali 6 interpreter was used; the interviewer asked whether Hossain 7 “fear[ed] that [he] will be persecuted or tortured” if returned 8 to Bangladesh (that is, questions designed to elicit an asylum 9 and CAT claim); the questions and answers were memorialized in 10 a typewritten document; and at no point during the interview 11 did Hossain seem to have difficulty answering the interviewer’s 12 questions. 13 Because the record of the interview is reliable, the agency 14 was entitled to consider inconsistencies among Hossain’s border 15 patrol interview statements in assessing his credibility. See 16 Ramsameachire, 357 F.3d at 179-80. The inconsistencies arising 17 from those statements, moreover, were a proper basis for the 18 adverse credibility determination. See Xiu Xia Lin, 534 F.3d 19 at 166-67. In his border patrol interview, Hossain answered 20 “no” when asked if he feared persecution if sent back to 21 Bangladesh and explained that his purpose for coming to the 22 United States was “to live and work.” Two weeks later at his 23 credible fear interview, however, he stated that he left 4 1 Bangladesh because of political persecution and he feared that 2 he would be killed if returned. Hossain reiterated his claims 3 of past persecution and fear of returning to Bangladesh in his 4 application and testimony. The agency did not err in rejecting 5 Hossain’s various explanations, which did not resolve the 6 inconsistencies and only created further discrepancies. See 7 Majidi, 430 F.3d at 80; Ming Zhang, 585 F.3d at 725. 8 The credibility determination was also properly based on 9 inconsistencies regarding whether the author of a supporting 10 letter was Hossain’s brother. See Xiu Xia Lin, 534 F.3d at 11 166-67. The author, a Connecticut resident, stated in his 12 letter that Hossain is his “close friend” and “is like a younger 13 brother to [him].” However, Hossain testified that the author 14 was his biological brother, and he stated in his application 15 that the author had been directly involved with his political 16 party. The agency was not required to credit Hossain’s 17 explanations, and the inconsistencies reasonably called into 18 question whether his description of his family in Bangladesh 19 and claims of past persecution were fabricated. See Majidi, 430 20 F.3d at 80; Xiu Xia Lin, 534 F.3d at 166-67. 21 Having properly questioned Hossain’s credibility, the 22 agency reasonably relied further on his failure to provide 23 sufficient corroborating evidence. See Biao Yang v. Gonzales, 5 1 496 F.3d 268, 273 (2d Cir. 2007). Hossain provided no 2 contemporaneous medical records or documentation to corroborate 3 that his store of seven years was destroyed in Bangladesh, or 4 even that he owned a store. He also gave increasingly 5 inconsistent explanations as to how he lost his medical records 6 in Mexico. 7 Substantial evidence supports the agency’s adverse 8 credibility determination. See Xiu Xia Lin, 534 F.3d at 167. 9 That finding is dispositive of asylum, withholding of removal, 10 and CAT relief because all three claims are based on the same 11 factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 12 (2d Cir. 2006). 13 For the foregoing reasons, the petition for review is 14 DENIED. As we have completed our review, any stay of removal 15 that the Court previously granted in this petition is VACATED, 16 and any pending motion for a stay of removal in this petition 17 is DISMISSED as moot. Any pending request for oral argument in 18 this petition is DENIED in accordance with Federal Rule of 19 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 20 34.1(b). 21 FOR THE COURT: 22 Catherine O’Hagan Wolfe, Clerk 6