Mohammed v. Garland

19-66
Mohammed v. Garland


      19‐66
      Mohammed v. Garland                                                                       BIA
                                                                                           Straus, IJ
                                                                                        A208 310 248
                            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 for the Second
  2   Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
  3   Square, in the City of New York, on the 22nd day of July, two thousand twenty‐
  4   one.
  5
  6   PRESENT:
  7              RAYMOND J. LOHIER, JR.,
  8              RICHARD J. SULLIVAN,
  9              STEVEN J. MENASHI,
 10                    Circuit Judges.
 11   _____________________________________
 12
 13   FUSSEINI MOHAMMED,
 14             Petitioner,
 15
 16                   v.                                                      19‐66
 17                                                                           NAC
 18   MERRICK B. GARLAND, UNITED
 19   STATES ATTORNEY GENERAL,
 20            Respondent.*

      *Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Merrick B. Garland
      is automatically substituted as Respondent.
 1
 2   _____________________________________
 3
 4   FOR PETITIONER:                      Joshua Bardavid, Esq., New York, NY.
 5
 6   FOR RESPONDENT:                      Anthony C. Payne, Assistant Director; Colette
 7                                        J. Winston, Trial Attorney, Office of
 8                                        Immigration Litigation, United States
 9                                        Department of Justice, Washington, DC.

10         UPON DUE CONSIDERATION of this petition for review of a Board of

11   Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND

12   DECREED that the petition for review is DENIED.

13         Petitioner Fusseini Mohammed, a native and citizen of Ghana, seeks review

14   of a December 13, 2018 decision of the BIA affirming an October 30, 2017 decision

15   of an Immigration Judge (“IJ”), which denied Mohammed’s application for

16   asylum, withholding of removal, and protection under the Convention Against

17   Torture (“CAT”), on the grounds that Mohammed’s statements were not credible.

18   In re Fusseini Mohammed, No. A 208 310 248 (B.I.A. Dec. 13, 2018), aff’g No. A 208

19   310 248 (Immig. Ct. Hartford Oct. 30, 2017). We assume the parties’ familiarity

20   with the underlying facts and procedural history.

21         We have reviewed the IJ’s decision as modified by the BIA. See Xue Hong

22   Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). We review adverse

23   credibility determinations under the substantial evidence standard. See 8 U.S.C.

24   § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018).
 1         “Considering the totality of the circumstances, and all relevant factors, a

 2   trier of fact may base a credibility determination on the demeanor, candor, or

 3   responsiveness of the applicant . . . , the consistency between the applicant’s . . .

 4   written and oral statements . . . , the internal consistency of each such statement,

 5   the consistency of such statements with other evidence of record . . . without

 6   regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of

 7   the applicant’s claim, or any other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii).

 8   “We defer . . . to an IJ’s credibility determination unless . . . it is plain that no

 9   reasonable fact‐finder could make such an adverse credibility ruling.” Xiu Xia Lin

10   v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d at 76. The

11   agency may rely on both omissions and inconsistencies in making an adverse

12   credibility determination. See Xiu Xia Lin, 534 F.3d at 167.

13         Here, the agency’s credibility determination was clearly supported by

14   substantial record evidence. Specifically, the agency reasonably relied on the

15   following inconsistencies or omissions in concluding that Mohammed was not

16   credible: (1) Mohammed completely omitted from his interview with border

17   patrol agents that he was beaten by a mob and detained for two days after being

18   caught kissing his boyfriend; (2) although he stated during his border interview

19   and in his asylum application that he had received threatening text messages, he
                                             3
 1   testified that he did not receive such messages; (3) he stated at his border interview

 2   that he tried to speak to the leader of the people threatening him, but disavowed

 3   that statement during his hearing; (4) he provided inconsistent statements about

 4   when he first considered coming to the United States; and (5) although he testified

 5   that he was a shopkeeper, his children’s birth certificates listed him as a civil

 6   servant or social worker.

 7          Mohammed challenges only the agency’s reliance on his omission of his

 8   sexual orientation and does not deny or seek to explain away these other

 9   inconsistencies and omissions.1 But the omission of his sexual orientation is

10   significant. See Hong Fei Gao, 891 F.3d at 79 (holding that “discrepancies . . . must

11   be weighed in light of their significance to the total context of . . . [the] claim of

12   persecution”). And even absent that omission, his other inconsistent statements –

13   particularly his irreconcilable asserations about whether he was beaten or instead

14   received threatening text messages – provide distinct accounts of key events,

15   bolstering the agency’s findings. See Ramsameachire, 357 F.3d at 182; Majidi v.

16   Gonzales, 430 F.3d 77, 80–81 (2d Cir. 2005) (“A petitioner must do more than offer


     1
      Although we have cautioned against reliance on airport or border interviews as a basis for an
     adverse credibility determination because they “take[] place immediately after an alien has
     arrived in the United States, often after weeks of travel, and may be perceived by the alien as
     coercive or threatening, depending on the alien’s past experiences,” Mohammed does not dispute
     the reliabity of the record. Ramsameachire v. Ashcroft, 357 F.3d 169, 179 (2d Cir. 2004).
                                                    4
 1   a plausible explanation for his inconsistent statements to secure relief; he must

 2   demonstrate that a reasonable fact‐finder would be compelled to credit his

 3   testimony.” (internal quotation marks omitted)). The agency also reasonably

 4   relied on Mohammed’s failure to rehabilitate his testimony with sufficient

 5   corroborating evidence. See 8 U.S.C. § 1158(b)(1)(B)(ii); Biao Yang v. Gonzales, 496

 6   F.3d 268, 273 (2d Cir. 2007) (“An applicant’s failure to corroborate his . . . testimony

 7   may bear on credibility, because the absence of corroboration in general makes an

 8   applicant unable to rehabilitate testimony that has already been called into

 9   question.”).

10         In sum, the agency’s adverse credibility determination is supported by

11   substantial evidence. See Xiu Xia Lin, 534 F.3d at 165–67. The adverse credibility

12   determination is dispositive of asylum, withholding of removal, and CAT relief

13   because all three forms of relief are based on the same discredited factual

14   predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006). Accordingly,

15   the petition for review is DENIED.       All pending motions and applications are

16   DENIED and stays VACATED.

17                                           FOR THE COURT:
18                                           Catherine O’Hagan Wolfe,
19                                           Clerk of Court



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