17-2377
Islam v. Barr
BIA
Schoppert, IJ
A205 306 078
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
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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 23rd day of July, two thousand nineteen.
PRESENT:
BARRINGTON D. PARKER,
RICHARD C. WESLEY,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
SAIFUL ISLAM,
Petitioner,
v. 17-2377
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Salim Sheikh, New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Linda S.
Wernery, Assistant Director;
Gregory M. Kelch, Trial Attorney,
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 Saiful Islam (“Islam”), a native and citizen
of Bangladesh, seeks review of a July 10, 2017 decision of
the BIA affirming a November 30, 2016 decision of an
Immigration Judge (“IJ”) denying Islam’s application for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Saiful Islam, No.
A 205 306 078 (B.I.A. July 10, 2017), aff’g No. A 205 306 078
(Immig. Ct. N.Y. City Nov. 30, 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. See Yun-Zui Guan v.
Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable
standards of review are well-established. See 8 U.S.C.
§ 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76
(2d Cir. 2018).
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The governing REAL ID Act credibility standard provides
as follows:
Considering the totality of the circumstances, and
all relevant factors, a trier of fact may base a
credibility determination on . . . the consistency
between 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, . . . or any other relevant factor.
8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
credibility determination unless . . . it is plain that no
reasonable fact-finder could make such an adverse credibility
ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
2008); accord Hong Fei Gao, 891 F.3d at 76. Here, we conclude
that substantial evidence supports the agency’s adverse
credibility determination.
As an initial matter, the agency did not err in relying
on the credible fear interview when assessing credibility
because the interview record “display[ed] the hallmarks of
reliability.” Ming Zhang v. Holder, 585 F.3d 715, 725 (2d
Cir. 2009). Although Islam argues that any inconsistency was
probably due to the coercive nature of the interview, the
record does not reflect that he was reluctant to reveal
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information. And his argument that the BIA failed to address
the reliability of the interview record is belied by the BIA’s
statement agreeing with the IJ’s conclusion that the
interview notes were reliable. Accordingly, the agency
reasonably relied on several inconsistencies between Islam’s
statements at the credible fear interview and his hearing
testimony. See 8 U.S.C. § 1158(b)(1)(B)(iii).
First, Islam’s testimony and interview statements were
inconsistent regarding whether Islam was arrested and harmed
by the police in November 2011. The IJ was not required to
credit Islam’s explanation for the inconsistency that he
thought the interviewer was asking about arrests on his way
to the United States because the questions were not asked in
the context of a discussion about Islam’s journey to the
United States; moreover, when asked to identify the next
incident of harm after July 2011, Islam skipped over the
alleged November 2011 arrest to a January 2012 incident. See
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 compelled
4
to credit his testimony.” (internal quotation marks and
citations omitted)).
Second, Islam’s testimony that he went to police at the
end of 2011 to file a complaint was inconsistent with the
credible fear interview, where he stated that he did not
report threats to the police. Although Islam argues that the
interviewer asked only whether he reported a January 2012
threat to the police, as opposed to threats in 2011, the
interviewer asked several questions about whether Islam
contacted the police after threats in 2011 and 2012, as well
as why he did not report the threats to the police.
Third, Islam gave materially different descriptions of
his work for the Bangladesh Nationalist Party (“BNP”),
stating at the interview that he merely attended events, but
magnifying his role at the hearing by testifying that he was
the organizing secretary and organized the events.
Ramsameachire v. Ashcroft, 357 F.3d 169, 180-81 (2d Cir. 2004)
Finally, Islam’s documentary evidence further undermined
his claim. See 8 U.S.C. § 1158(b)(1)(B)(iii); Biao Yang v.
Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s
failure to corroborate his . . . testimony may bear on
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credibility, because the absence of corroboration in general
makes an applicant unable to rehabilitate testimony that has
already been called into question”). Islam’s testimony was
inconsistent with his mother’s affidavit regarding whether he
was threatened while in Dhaka. Islam’s statement about when
he became an organizing secretary for the BNP was inconsistent
with his original letter from the party. And Islam’s
testimony was inconsistent with a witness affidavit regarding
whether the witness rescued him from an attack. Furthermore,
the IJ reasonably gave these documents limited weight as the
authors were not available for cross-examination. See Y.C.
v. Holder, 741 F.3d 324, 332, 334 (2d Cir. 2013) (“We
generally defer to the agency’s evaluation of the weight to
be afforded an applicant’s documentary evidence.”); Matter of
H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (BIA 2010),
overruled on other grounds by Hui Lin Huang v. Holder, 677
F.3d 130 (2d Cir. 2012).
Given these multiple inconsistencies, substantial
evidence supports the adverse credibility determination here.
See Xiu Xia Lin, 534 F.3d at 167. Because Islam’s claims
were all based on the same factual predicate, the adverse
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credibility determination is dispositive of asylum,
withholding of removal, and CAT relief. See 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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