20-1015
Hossain v. Garland
BIA
Kolbe, IJ
A206 911 460
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 30th day of March, two thousand twenty-two.
5
6 PRESENT:
7 JOSEPH F. BIANCO,
8 WILLIAM J. NARDINI,
9 STEVEN J. MENASHI,
10 Circuit Judges.
11 _____________________________________
12
13 FARUQ HOSSAIN, AKA FARUG
14 HOSSAIN,
15 Petitioner,
16
17 v. 20-1015
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Ben Baumgartner, Baumgartner Law
25 Office, New York, NY.
26
27 FOR RESPONDENT: Jeffrey Bossert Clark, Acting
28 Assistant Attorney General;
1 Bernard A. Joseph, Senior
2 Litigation Counsel; Erik R. Quick,
3 Trial Attorney, Office of
4 Immigration Litigation, United
5 States Department of Justice,
6 Washington, DC.
7
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is DENIED.
12 Petitioner Faruq Hossain, a native and citizen of
13 Bangladesh, seeks review of a February 24, 2020 decision of
14 the BIA affirming an April 2, 2018 decision of an Immigration
15 Judge (“IJ”), which denied Hossain’s application for asylum,
16 withholding of removal, and relief under the Convention
17 Against Torture (“CAT”). In re Faruq Hossain, No. A206 911
18 460 (B.I.A. Feb. 24, 2020), aff’g No. A206 911 460 (Immigr.
19 Ct. N.Y.C. Apr. 2, 2018). We assume the parties’ familiarity
20 with the underlying facts and procedural history.
21 Under the circumstances, we have considered both the IJ’s
22 and the BIA’s opinions. See Wangchuck v. Dep’t of Homeland
23 Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review the
24 agency’s adverse credibility determination for substantial
25 evidence. See 8 U.S.C. § 1252(b)(4)(B) (“[T]he
26 administrative findings of fact are conclusive unless any
2
1 reasonable adjudicator would be compelled to conclude to the
2 contrary.”). “The scope of review under the substantial
3 evidence standard is exceedingly narrow, and we will uphold
4 the BIA's decision unless the petitioner demonstrates that
5 the record evidence was so compelling that no reasonable
6 factfinder could fail to find him eligible for relief.”
7 Singh v. Garland, 11 F.4th 106, 113 (2d Cir. 2021) (internal
8 quotation marks omitted).
9 “Considering the totality of the circumstances, and all
10 relevant factors, a trier of fact may base a credibility
11 determination on the demeanor, candor, or responsiveness of
12 the applicant or witness, the inherent plausibility of the
13 applicant’s or witness’s account, [and] the consistency
14 between the applicant’s or witness’s written and oral
15 statements . . . without regard to whether an inconsistency,
16 inaccuracy, or falsehood goes to the heart of the applicant’s
17 claim, or any other relevant factor.” 8 U.S.C.
18 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility
19 determination unless, from the totality of the circumstances,
20 it is plain that no reasonable fact-finder could make such an
21 adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534
22 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao v. Sessions,
3
1 891 F.3d 67, 76 (2d Cir. 2018).
2 Substantial evidence supports the agency’s determination
3 that Hossain was not credible as to his claim that members of
4 the Awami League attacked him twice on account of his
5 membership in the Bangladesh National Party (“BNP”). The
6 agency reasonably found Hossain’s testimony nonresponsive
7 when he was asked about the medical evidence he submitted.
8 See 8 U.S.C. § 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430
9 F.3d 77, 81 n.1 (2d Cir. 2005) (recognizing that we give
10 particular deference to the trier of fact’s assessment of a
11 witness’s demeanor). That finding is supported by the
12 record, which shows that Hossain stopped responding to
13 questions at one point when asked about his corroborating
14 evidence. See Jin Chen v. U.S. Dep’t of Just., 426 F.3d 104,
15 113 (2d Cir. 2005) (holding that an “IJ’s ability to observe
16 . . . demeanor places [the IJ] in the best position to
17 evaluate whether apparent problems in the . . . testimony
18 suggest a lack of credibility or, rather, can be attributed
19 to an innocent cause such as difficulty understanding the
20 question”).
21 The IJ’s demeanor finding, and the adverse credibility
22 determination as a whole, are further supported by Hossain’s
4
1 implausible testimony regarding the second attack. See
2 8 U.S.C. § 1158(b)(1)(B)(iii); cf. Li Hua Lin v. U.S. Dep’t
3 of Just., 453 F.3d 99, 109 (2d Cir. 2006) (“We can be still
4 more confident in our review of observations about an
5 applicant’s demeanor where, as here, they are supported by
6 specific examples of inconsistent testimony.”). Hossain
7 testified that he was on his way home at the end of a rally
8 of 400 to 500 BNP members and that he had walked only 50 to
9 100 feet from the rally site before he was attacked. He
10 claimed to have been the only attendee attacked. As the IJ
11 concluded, this story was implausible and thus supported the
12 adverse credibility determination. See 8 U.S.C.
13 § 1158(b)(1)(B)(iii); Siewe v. Gonzales, 480 F.3d 160, 168–
14 69 (2d Cir. 2007) (recognizing that an adverse credibility
15 determination may be based on inherent implausibility if the
16 finding “is tethered to the evidentiary record” or “record
17 facts . . . viewed in the light of common sense and ordinary
18 experience”).
19 Hossain was provided an opportunity to explain his
20 implausible testimony but gave inconsistent explanations,
21 first stating that he had work to complete after the rally,
22 then, when asked why he was the only one with work to
5
1 complete, changing his testimony to say he was attacked after
2 stopping at an adjacent market. See 8 U.S.C.
3 § 1158(b)(1)(B)(iii); Majidi, 430 F.3d at 80 (“A petitioner
4 must 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 Given the demeanor and implausibility findings, the
9 agency’s adverse credibility determination is supported by
10 substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii);
11 see also Xiu Xia Lin, 534 F.3d at 167. That determination
12 was dispositive of asylum, withholding of removal, and CAT
13 relief because all three claims were based on the same factual
14 predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d
15 Cir. 2006) (concluding that, “[b]ecause th[e] same factual
16 assertion was needed for either the asylum or the withholding
17 claim, the [adverse] credibility ruling necessarily
18 foreclosed relief in both”). Accordingly, we do not reach
19 the agency’s alternative determination that Hossain failed to
20 adequately corroborate his claim. See INS v. Bagamasbad, 429
21 U.S. 24, 25 (1976) (“As a general rule courts and agencies
22 are not required to make findings on issues the decision of
6
1 which is unnecessary to the results they reach.”).
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