16-2359
Uddin-Nessa v. Sessions
BIA
Schoppert, IJ
A200 239 856
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
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 4th day of May, two thousand eighteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 RICHARD C. WESLEY,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 AHMED SHAFIQ UDDIN-NESSA, AKA
14 MOHAMED SHAFIQ AHMED,
15 Petitioner,
16
17 v. 16-2359
18 NAC
19 JEFFERSON B. SESSIONS, III,
20 UNITED STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Gregory Marotta, Vernon, NJ.
25
26 FOR RESPONDENT: Chad A. Readler, Acting Assistant
27 Attorney General; Anthony P.
28 Nicastro, Assistant Director;
29 Sheri R. Glaser, Trial Attorney,
30 Office of Immigration Litigation,
31 United States Department of
32 Justice, Washington, 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
4 is DENIED.
5 Petitioner Ahmed Shafiq Uddin-Nessa, a native and citizen
6 of Bangladesh, seeks review of a June 17, 2016, decision of
7 the BIA affirming a February 25, 2015, decision of an
8 Immigration Judge (“IJ”) denying asylum, withholding of
9 removal, and relief under the Convention Against Torture
10 (“CAT”). In re Ahmed Shafiq Uddin-Nessa, No. A200 239 856
11 (B.I.A. June 17, 2016), aff’g No. A200 239 856 (Immig. Ct.
12 N.Y. City Feb. 25, 2015). We assume the parties’ familiarity
13 with the underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed
15 both the IJ’s and the BIA’s opinions “for the sake of
16 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448
17 F.3d 524, 528 (2d Cir. 2006). The applicable standards of
18 review are well established. 8 U.S.C. § 1252(b)(4)(B); Xiu
19 Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
20 “Considering the totality of the circumstances, and all
21 relevant factors, a trier of fact may base a credibility
22 determination on . . . the consistency between the
2
1 applicant’s . . . written and oral statements . . . , the
2 internal consistency of each such statement, [and] the
3 consistency of such statements with other evidence of
4 record . . . without regard to whether an inconsistency,
5 inaccuracy, or falsehood goes to the heart of the
6 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
7 Lin, 534 F.3d at 163-64.
8 Although the agency reasonably relied on Uddin-Nessa’s
9 inconsistent statements regarding whether he had been
10 arrested in Bangladesh and Panama to question his
11 credibility, see Xiu Xia Lin, 534 F.3d at 165-66, it erred
12 when it declined to consider his cousin’s passport records
13 and his hospital records as corroborating evidence that he
14 offered to rehabilitate his credibility, see Biao Yang v.
15 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s
16 failure to corroborate his or her testimony may bear on
17 credibility, because the absence of corroboration in
18 general makes an applicant unable to rehabilitate testimony
19 that has already been called into question.”).
20 “[H]owever, not every minor error requires a remand.
21 Certainly if the IJ explicitly adopts an alternative and
22 sufficient basis for her determination, no remand is
3
1 required.” Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d
2 391, 401 (2d Cir. 2005). Thus, when an adverse credibility
3 determination results from “some agency findings infected
4 by legal error and others that are not, our decision to
5 uphold the agency decision or to remand for further
6 proceedings depends on how confidently we can predict that
7 the agency would reach the same decision absent the errors
8 that were made.” Shunfu Li v. Mukasey, 529 F.3d 141, 150
9 (2d Cir. 2008) (internal quotation marks omitted).
10 In reaching an adverse credibility conclusion, the IJ
11 provided multiple reasons for finding Uddin-Nessa’s
12 testimony not credible; properly accounting for
13 corroborating evidence would not have changed the
14 conclusion that Uddin-Nessa was not credible. Although the
15 passport records tended to place his cousin in Bangladesh
16 at the time of Uddin-Nessa’s arrest, the IJ also emphasized
17 her testimony was entitled to diminished weight because she
18 was an interested witness and her testimony only sought to
19 corroborate Uddin-Nessa’s inconsistent statements.
20 Certified Administrative Record (CAR) at 41–42.
21 Additionally, even if the IJ erred in failing to
22 explain why it did not consider Uddin-Nessa’s hospital
4
1 records to rehabilitate his credibility, the records would
2 be insufficient to overcome the numerous omissions and
3 implausible statements in his own testimony. The IJ based
4 its credibility determination on substantial and damning
5 inconsistencies, including most notably Uddin-Nessa’s
6 failure to reveal to U.S. authorities his fourteen-month
7 detention in Panama or his arrest in Bangladesh in 2008.
8 CAR at 39–40. The IJ found his explanation for those
9 omissions to be unpersuasive. The IJ also found Uddin-
10 Nessa not credible based on the inconsistencies between his
11 testimony in his removal hearing, asylum application, and
12 credible fear interview with DHS.
13 Because the hospital records alone would be insufficient to
14 rehabilitate Uddin-Nessa’s credibility, we can confidently
15 predict that remand would be futile.
16 For the foregoing reasons, the petition for review is
17 DENIED and the BIA’s order is AFFIRMED. As we have
18 completed our review, any stay of removal that the Court
19 previously granted in this petition is VACATED, and any
20 pending motion for a stay of removal in this petition is
21 DISMISSED as moot. Any pending request for oral argument
22 in this petition is DENIED in accordance with Federal Rule
5
1 of Appellate Procedure 34(a)(2), and Second Circuit Local
2 Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
6
Uddin-Nessa v. Sessions
Combined Opinion