16-3841
Alam v. Sessions
BIA
Christensen, IJ
A201 293 607
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 18th day of June, two thousand eighteen.
PRESENT:
RAPLH K. WINTER,
GUIDO CALABRESI,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
MASUD ALAM, AKA ALAM MASUD,
Petitioner,
v. 16-3841
NAC
JEFFERSON B. SESSIONS, III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: David J. Rodkin, New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Shelley R. Goad,
Assistant Director; Russell J.E.
Verby, Senior Litigation Counsel,
Office of Immigration Litigation,
United States Department of
Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Masud Alam, a native and citizen of
Bangladesh, seeks review of an October 20, 2016, decision
of the BIA affirming a February 25, 2016, decision of an
Immigration Judge (“IJ”) denying Alam’s application for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Masud Alam, No.
A201 293 607 (B.I.A. Oct. 20, 2016), aff’g No. A 201 293 607
(Immig. Ct. N.Y. City Feb. 25, 2016). We assume the
parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we have reviewed
both the BIA’s and IJ’s decisions. Yun-Zui Guan v. Gonzales,
432 F.3d 391, 394 (2d Cir. 2005). The standards of review
are well established. See 8 U.S.C. § 1252(b)(4); Xiu Xia Lin
v. Mukasey, 534 F.3d 162, 165 (2d Cir. 2008)(per curiam).
The agency may, “[c]onsidering the totality of the
circumstances,” base a credibility finding on an asylum
applicant’s “demeanor, candor, or responsiveness,” the
plausibility of his account, and “the consistency between
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the applicant’s or witness’s written and oral statements .
. . , the internal consistency of each such statement, the
consistency of such statements with other evidence of
record . . . , and any inaccuracies or falsehoods in such
statements, without regard to whether an inconsistency,
inaccuracy, or falsehood goes to the heart of the
applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
Lin, 534 F.3d at 163-64. Substantial evidence supports the
agency’s determination that Alam was not credible.
First, the agency reasonably relied on an inconsistency
between Alam’s testimony and his grandfather’s affidavit
about how long he was in hiding after the 2006 attack,
particularly as Alam’s continuously shifting testimony
prevented any resolution of the inconsistency. See Xiu Xia
Lin, 534 F.3d at 163-64; Xian Tuan Ye v. Dep’t of Homeland
Sec., 446 F.3d 289, 295 (2d Cir. 2006) (per curiam). The
IJ reasonably rejected Alam’s explanation that he was
confused because the government’s attorney repeatedly
confirmed that Alam understood the line of questioning.
Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A
petitioner must do more than offer a plausible explanation
for his inconsistent statements to secure relief; he must
demonstrate that a reasonable fact-finder would be
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compelled to credit his testimony.” (quotation marks and
citation omitted)).
The agency also reasonably relied on Alam’s and his
wife’s erroneous statements about how many children they had.
Even though Alam eventually amended his application to
reflect all four of his children, the agency reasonably relied
on the original error. As the IJ explained, Alam’s wife’s
repetition of an error in the application called into question
whether she authored the statement. And the seeming
fabrication of evidence undermined Alam’s credibility as a
whole. Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007)
(“[A] single false document or a single instance of false
testimony may (if attributable to the petitioner) infect the
balance of the alien's uncorroborated or unauthenticated
evidence.”).
Finally, the agency reasonably relied on the
inconsistency between Alam’s statement at his credible fear
interview that he was never arrested and his application,
which reported that he was arrested and tortured by the
police in 2009. 8 U.S.C. § 1158(b)(1)(B)(iii). The agency
reasonably relied on the interview because Alam had access
to a Bengali interpreter, and although not a verbatim
transcript, the record is typewritten and memorialized in a
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question and answer format, and there is no indication that
Alam misunderstood any questions or that the record does
not reflect his actual responses. Ming Zhang v. Holder,
585 F.3d 715, 725 (2d Cir. 2009). The agency was not
required to credit Alam’s explanation that he thought the
officer meant arrest by immigration authorities in the
United States, particularly given that the bulk of the
questions were about his experiences in Bangladesh.
Majidi, 430 F.3d at 80-81.
Alam’s additional challenges to these findings fail.
The agency may rely “on any inconsistency,” Xiu Xia Lin, 534
F.3d at 167, and his inconsistencies are substantial as they
either call into question specific incidents of alleged harm
or impugn the validity of Alam’s documentary evidence. Xian
Tuan Ye, 446 F.3d at 295; Siewe, 430 F.3d at 170. Nor does
Alam’s diagnosis of post-traumatic stress disorder excuse the
inconsistencies, particularly as it does not resolve the
problem with his wife’s letter. Majidi, 430 F.3d at 80-81.
Contrary to Alam’s position, the IJ did not apply an incorrect
legal standard when addressing Alam’s explanations, the IJ
simply cited the controlling law in connection with his
conclusion that the explanations were unpersuasive.
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Given the substantial inconsistencies discussed above,
the totality of the circumstances supports the adverse
credibility determination. Xiu Xia Lin, 534 F.3d at 167.
Because Alam’s claims were all based on the same factual
predicate, the adverse credibility determination is
dispositive of asylum, withholding of removal, and CAT
relief. Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.
2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe
Clerk of Court
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