16-2853
Ali v. Sessions
BIA
Poczter, IJ
A206 225 077
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 13th day of December, two thousand seventeen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 DEBRA ANN LIVINGSTON,
9 CHRISTOPHER. F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 MOHAMMED ALI,
14 Petitioner,
15
16 v. 16-2853
17 NAC
18 JEFFERSON B. SESSIONS III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Thomas V. Massucci, New York, NY.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; Briena L.
27 Strippoli, Senior Litigation
28 Counsel; John M. McAdams, Jr.,
29 Attorney, Office of Immigration
30 Litigation, United States
31 Department of Justice, Washington,
32 DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Mohammed Ali, a native and citizen of
6 Bangladesh, seeks review of an August 8, 2016, decision of the
7 BIA affirming a July 29, 2015, decision of an Immigration Judge
8 (“IJ”) denying Ali’s application for asylum, withholding of
9 removal, and relief under the Convention Against Torture
10 (“CAT”). In re Mohammed Ali, No. A 206 225 077 (B.I.A. Aug. 8,
11 2016), aff’g No. A 206 225 077 (Immig. Ct. N.Y. City July 29,
12 2015). We assume the parties’ familiarity with the underlying
13 facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed the
15 IJ’s decision as modified by the BIA. Xue Hong Yang v. U.S.
16 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The
17 applicable standards of review are well established. See
18 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
19 165-66 (2d Cir. 2008). “Considering the totality of the
20 circumstances, and all relevant factors, a trier of fact may
21 base a credibility determination on the demeanor, candor, or
22 responsiveness of the applicant . . . the consistency between
23 the applicant’s or witness’s written and oral statements . . .
2
1 and any inaccuracies or falsehoods in such statements, without
2 regard to whether an inconsistency, inaccuracy, or falsehood
3 goes to the heart of the applicant’s claim.” 8 U.S.C.
4 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64 & n.2.
5 “We defer . . . to an IJ’s credibility determination unless .
6 . . it is plain that no reasonable fact-finder could make such
7 an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
8 Here, substantial evidence supports the adverse
9 credibility determination. The agency reasonably relied on
10 discrepancies between the letters Ali submitted from fellow
11 Bangladesh Nationalist Party (“BNP”) members and their
12 accompanying translations. See id. at 166-67. The letters
13 were dated as prepared after the accompanying translations,
14 calling into question the validity of the letters. When asked
15 to explain, Ali attributed the discrepancy to a translation
16 error and explained that his cousin had corrected the
17 translations. The IJ was not required to accept this
18 explanation, as there was no evidence from Ali’s cousin in the
19 record, nor any information about the translation process. See
20 Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner
21 must do more than offer a plausible explanation for his
22 inconsistent statements to secure relief; he must demonstrate
23 that a reasonable fact-finder would be compelled to credit his
3
1 testimony.” (internal quotation marks and citations omitted)).
2 The IJ reasonably determined that the letters—which were
3 submitted to prove Ali’s political activities—undermined his
4 claim of persecution on account of his political opinion. See
5 Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (“[A] finding
6 of fraudulent evidence redounds upon all evidence the probative
7 force of which relies in any part on the credibility of the
8 petitioner.”).
9 The adverse credibility determination is further bolstered
10 by Ali’s omission from his application of his first attempt to
11 flee to the United States while in hiding in Bangladesh. See
12 Xiu Xia Lin, 534 F.3d at 166 n.3 (“An inconsistency and an
13 omission are . . . functionally equivalent.” (citation
14 omitted)); see also Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d
15 Cir. 2006) (“[E]ven where an IJ relies on discrepancies or
16 lacunae that, if taken separately, concern matters collateral
17 or ancillary to the claim . . . the cumulative effect may
18 nevertheless be deemed consequential by the fact-finder.”
19 (internal quotation marks and citations omitted)). The agency
20 was not required to credit Ali’s explanation that no one asked
21 him about his prior attempt to enter the United States, given
22 that his application covers the relevant time period and the
23 omission calls into question his fear of harm and whether he
4
1 was in hiding both before and after that first departure.
2 Majidi, 430 F.3d at 80-81.
3 Finally, the agency’s demeanor finding provides further
4 support for the adverse credibility determination. See Li Hua
5 Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006)
6 (“In reviewing adverse credibility determinations, we give
7 particular deference to those that are based on the
8 adjudicator’s observation of the applicant’s demeanor.”
9 (internal quotation marks, brackets, and citations omitted)).
10 Moreover, the record supports the IJ’s conclusion that Ali’s
11 testimony was nonresponsive and evasive on cross examination.
12 Id. (“[T]he IJ’s ability to observe the witness’s demeanor
13 places her in the best position to evaluate whether apparent
14 problems in the witness’s testimony suggest a lack of
15 credibility or, rather, can be attributed to an innocent cause.”
16 (internal quotation marks and citation omitted)).
17 Given the discrepancy that called into question the
18 validity of Ali’s corroborating evidence and his political
19 activities, the omission of his first attempt to flee
20 Bangladesh, and the IJ’s demeanor finding, substantial evidence
21 supports the agency’s adverse credibility determination. See
22 Xiu Xia Lin, 534 F.3d at 167. The adverse credibility
23 determination is dispositive of asylum, withholding of removal,
5
1 and CAT relief because all three claims are based on the same
2 factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156–
3 57 (2d Cir. 2006).
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of removal
6 that the Court previously granted in this petition is VACATED,
7 and any pending motion for a stay of removal in this petition
8 is DISMISSED as moot. Any pending request for oral argument
9 in this petition is DENIED in accordance with Federal Rule of
10 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
11 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
6