Hoque v. Barr

18-1303
Hoque v. Barr
BIA
Schoppert, IJ
A208 173 466
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 13th day of August, two thousand twenty.
5
6 PRESENT:
7 DEBRA ANN LIVINGSTON,
8 RAYMOND J. LOHIER, JR.,
9 STEVEN J. MENASHI,
10 Circuit Judges.
11 _____________________________________
12
13 MOJAMMAL HOQUE,
14 Petitioner,
15
16 v. 18-1303
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Jaspreet Singh, Jackson Heights,
24 NY.
25
26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
27 General; M. Jocelyn Lopez Wright,
28 Senior Litigation Counsel; Anthony
29 J. Messuri, Trial Attorney, Office
 1 of Immigration Litigation, United
2 States Department of Justice,
3 Washington, DC.

4 UPON DUE CONSIDERATION of this petition for review of a

5 Board of Immigration Appeals (“BIA”) decision, it is hereby

6 ORDERED, ADJUDGED, AND DECREED that the petition for review

7 is DENIED.

8 Petitioner Mojammal Hoque, a native and citizen of

9 Bangladesh, seeks review of an April 3, 2018 decision of the

10 BIA affirming a July 13, 2017 decision of an Immigration Judge

11 (“IJ”) denying his application for asylum, withholding of

12 removal, and relief under the Convention Against Torture

13 (“CAT”). In re Mojammal Hoque, No. A 208 173 466 (B.I.A. Apr.

14 3, 2018), aff’g No. A 208 173 466 (Immig. Ct. N.Y.C. July 13,

15 2017). We assume the parties’ familiarity with the

16 underlying facts and procedural history.

17 Under the circumstances of this case, we have reviewed

18 both the BIA’s and IJ’s decisions. See Yun-Zui Guan v.

19 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The standards

20 of review are well established. See 8 U.S.C.

21 § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76

22 (2d Cir. 2018). “Considering the totality of the

23 circumstances, and all relevant factors, a trier of fact may

2
 1 base a credibility determination on the . . . consistency

2 between the applicant’s . . . written and oral statements . .

3 . , the internal consistency of each such statement, the

4 consistency of such statements with other evidence of record

5 . . . without regard to whether an inconsistency, inaccuracy,

6 or falsehood goes to the heart of the applicant’s claim, or

7 any other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii).

8 “We defer . . . to an IJ’s credibility determination unless,

9 from the totality of the circumstances, it is plain that no

10 reasonable fact-finder could make such an adverse credibility

11 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.

12 2008); accord Hong Fei Gao, 891 F.3d at 76. We conclude that

13 the adverse credibility determination here is supported by

14 substantial evidence, including Hoque’s contradictory

15 statements about whether he was ever harmed in Bangladesh,

16 inconsistencies regarding the date of the alleged harm, and

17 a lack of reliable corroborating evidence.

18 As an initial matter, the agency did not err in relying

19 on Hoque’s statement during his credible fear interview

20 because the record of this interview bore sufficient indicia

21 of reliability so as to warrant evidentiary weight. See Ming

22 Zhang v. Holder, 585 F.3d 715, 725 (2d Cir. 2009). An

3
 1 interpreter was present, the record reflects questions

2 designed to elicit details of Hoque’s asylum claim, and there

3 is no indication that Hoque had difficulty communicating. At

4 his credible fear interview, Hoque described threats from

5 Awami League members, but claimed he had never been physically

6 harmed. In contrast, in his asylum application and during his

7 testimony, Hoque claimed that Awami League members dragged

8 him, handcuffed, to the police station, where police officers

9 then beat him and detained him for six hours. The agency

10 reasonably relied on this inconsistency between Hoque’s

11 interview where he said he was never harmed and his

12 application and testimony, which alleged these beatings and

13 a brief detention. See 8 U.S.C. § 1158(b)(1)(B)(iii).

14 Hoque also provided inconsistent dates for this incident.

15 Between his written application and testimony, he provided

16 several different dates and timelines for his alleged attack,

17 corresponding to two separate elections in Bangladesh. The

18 agency was not required to accept his explanation for these

19 discrepancies—that his high cholesterol, his high blood

20 pressure, and his journey to the United States caused memory

21 loss—because rather than explaining that he could not recall,

22 he gave various specific dates in his statements. Moreover,

4
 1 he did not provide any evidence of actual memory loss, or how

2 his medical conditions affected his memory. See Majidi v.

3 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must

4 do more than offer a plausible explanation for his

5 inconsistent statements to secure relief; he must demonstrate

6 that a reasonable fact-finder would be compelled to credit

7 his testimony.” (internal quotation marks omitted)).

8 The agency also reasonably determined that Hoque’s

9 documentary evidence did not rehabilitate his credibility

10 which had already been called into question. See Biao Yang

11 v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s

12 failure to corroborate his or her testimony may bear on

13 credibility, because the absence of corroboration in general

14 makes an applicant unable to rehabilitate testimony that has

15 already been called into question.”). The agency acted

16 within its discretion in giving Hoque’s evidence little

17 weight, because it consisted of letters written by

18 individuals who were unavailable to testify. See Y.C. v.

19 Holder, 741 F.3d 324, 332 (2d Cir. 2013) (“We defer to the

20 agency’s determination of the weight afforded to an alien’s

21 documentary evidence.”); Matter of H-L-H- & Z-Y-Z-, 25 I. &

22 N. Dec. 209, 215 (B.I.A. 2010), rev’d on other grounds by Hui

5
 1 Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012).

2 Furthermore, the letter from the Bangladesh Nationalist Party

3 president of Hoque’s district did not corroborate Hoque’s

4 claim because it did not discuss any threats or harm to Hoque

5 by rival party members or the police.

6 Considering that the inconsistencies related directly to

7 the sole incident of past harm and Hoque did not submit

8 reliable corroboration to rehabilitate his testimony, the

9 totality of the circumstances supports the agency’s adverse

10 credibility determination. See 8 U.S.C.

11 § 1158(b)(1)(B)(iii); Likai Gao v. Barr, No. 18-358, 2020 WL

12 4290009, at *4 n.8 (2d Cir. July 28, 2020) (“[E]ven a single

13 inconsistency might preclude an alien from showing that an IJ

14 was compelled to find him credible. Multiple inconsistencies

15 would so preclude even more forcefully.”); Xian Tuan Ye v.

16 Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006)

17 (holding that material inconsistency regarding basis of

18 applicant’s asylum claim is substantial evidence for adverse

19 credibility determination). That determination is

20 dispositive of asylum, withholding of removal, and CAT relief

21 because all three claims are based on the same factual

22 predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d

6
1 Cir. 2006).

2 For the foregoing reasons, the petition for review is

3 DENIED. All pending motions and applications are DENIED and

4 stays VACATED.

5 FOR THE COURT:
6 Catherine O’Hagan Wolfe,
7 Clerk of Court

7