16-4130
Kibria v. Sessions
BIA
Poczter, IJ
A205 634 225
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 25th day of June, two thousand eighteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 GERARD E. LYNCH,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 GOLAM KIBRIA, AKA MOHAMED
14 HUSSEIN,
15 Petitioner,
16
17 v. 16-4130
18 NAC
19 JEFFERSON B. SESSIONS III,
20 UNITED STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Thomas V. Massucci, New York, NY.
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 Golam Kibria, a native and citizen of
6 Bangladesh, seeks review of a November 22, 2016, decision
7 of the BIA affirming a March 2, 2016, decision of an
8 Immigration Judge (“IJ”) denying Kibria’s application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Golam Kibria, No.
11 A 205 634 225 (B.I.A. Nov. 22, 2016), aff’g No. A 205 634
12 225 (Immig. Ct. N.Y. City Mar. 2, 2016). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 both the IJ’s and BIA’s decisions “for the sake of
17 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448
18 F.3d 524, 528 (2d Cir. 2006). The applicable standards of
19 review are well established. See 8 U.S.C. § 1252(b)(4)(B);
20 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.
21 2008).
22 The agency may, “[c]onsidering the totality of the
23 circumstances,” base an adverse credibility ruling on the
2
1 “consistency between the applicant’s or witness’s written
2 and oral statements[,] . . . the internal consistency of
3 each such statement, . . . the consistency of such
4 statements with other evidence of record[,] . . . any
5 inaccuracies or falsehoods in such statements, . . . or any
6 other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We
7 defer . . . to an IJ’s credibility determination unless
8 . . . it is plain that no reasonable fact-finder could make
9 such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d
10 at 167.
11 Substantial evidence supports the agency’s
12 determination that Kibria was not credible. First, the
13 agency reasonably relied on Kibria’s witnesses’ identical
14 or nearly identical descriptions of key events. “[S]triking
15 similarities between affidavits are an indication that the
16 statements are canned.” Mei Chai Ye v. U.S. Dep’t of
17 Justice, 489 F.3d 517, 524 (2d Cir. 2007) (quotation marks
18 omitted)). See also Singh v. BIA, 438 F.3d 145, 148 (2d
19 Cir. 2006) (upholding adverse credibility determination
20 partly based on nearly identical language in supporting
21 affidavits). Several affidavits purporting to be from
22 different witnesses gave identical or nearly identical
23 paragraph-long descriptions of a February 2009 attack, a
3
1 July 2009 attack, and a November 2010 attack and Kibria’s
2 escape. A.R. 30-31. Kibria concedes that the similarities
3 in these affidavits undermine his credibility.
4 Omissions of key events in affidavits from Kibria’s
5 mother and a fellow party member, and inconsistencies
6 between Kibria’s testimony and a doctor’s letter describing
7 his injuries, bolster the adverse credibility ruling. See
8 Xiu Xia Lin, 534 F.3d at 166 n.3 (“An inconsistency and an
9 omission are . . . functionally equivalent” for credibility
10 purposes.”). Review of the record confirms the
11 discrepancies. Moreover, as the Government argues, Kibria
12 did not challenge the agency’s reliance on these
13 discrepancies in his brief to the BIA, and so he has failed
14 to exhaust these arguments. See Lin Zhong v. U.S. Dep’t of
15 Justice, 480 F.3d 104, 122-23 (2d Cir. 2007) (describing
16 the exhaustion requirement).
17 The above discrepancies, which call into question both
18 Kibria’s testimony and his corroborating evidence of the
19 alleged persecution, provide substantial evidence for the
20 adverse credibility ruling. 8 U.S.C. § 1158(b)(1)(B)(iii);
21 Xiu Xia Lin, 534 F.3d at 166-67. Because Kibria’s claims
22 were all based on the same factual predicate, the adverse
23 credibility ruling is dispositive of asylum, withholding of
4
1 removal, and CAT relief. Paul v. Gonzales, 444 F.3d 148,
2 156-57 (2d Cir. 2006).
3 For the foregoing reasons, the petition for review is
4 DENIED.
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe,
7 Clerk of Court
5