15-4078
Jahan v. Sessions
BIA
Segal, IJ
A200 939 239
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
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 19th day of April, two thousand seventeen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 PETER W. HALL,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 SHAH JAHAN,
14
15 Petitioner,
16
17 v. 15-4078
18 NAC
19 JEFFERSON B. SESSIONS III, UNITED
20 STATES ATTORNEY GENERAL,
21
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: Amy Nussbaum Gell, Gell & Gell,
26 New York, N.Y.
27
28 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
29 Assistant Attorney General; Paul
30 Fiorino, Senior Litigation Counsel;
31 Judith R. O’Sullivan, Trial
32 Attorney, Office of Immigration
1 Litigation, United States
2 Department of Justice, Washington,
3 D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review is
8 DENIED.
9 Petitioner Shah Jahan, a native and citizen of Bangladesh,
10 seeks review of a November 18, 2015, decision of the BIA,
11 affirming a June 10, 2014, decision of an Immigration Judge
12 (“IJ”) denying asylum, withholding of removal, and relief under
13 the Convention Against Torture (“CAT”). In re Shah Jahan, No.
14 A200 939 239 (B.I.A. Nov. 18, 2015), aff’g No. A200 939 239
15 (Immig. Ct. N.Y. City June 10, 2014). We assume the parties’
16 familiarity with the underlying facts and procedural history
17 in this case.
18 Under the circumstances of this case, we have reviewed both
19 the IJ’s and the BIA’s opinions “for the sake of completeness.”
20 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
21 2006). The applicable standards of review are well
22 established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
23 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). “Considering the
24 totality of the circumstances, and all relevant factors, a trier
25 of fact may base a credibility determination on . . . the
26 consistency between the applicant’s or witness’s written and
2
1 oral statements (whenever made and whether or not under oath,
2 and considering the circumstances under which the statements
3 were made) . . . .” 8 U.S.C. § 1158(b)(1)(B)(iii); see also
4 Xiu Xia Lin, 534 F.3d at 163-64. Substantial evidence supports
5 the agency’s determination that Jahan was not credible as to
6 his claim that Awami League members beat him on account of his
7 membership in the Bangladesh Nationalist Party, and that he
8 feared detention and persecution based on false charges filed
9 against him in Bangladesh.
10 The agency reasonably relied on inconsistencies between
11 Jahan’s testimony and his earlier sworn statements during a
12 credible fear interview. See 8 U.S.C. § 1158(b)(1)(B)(iii).
13 As an initial matter, the agency did not err in finding reliable
14 the record of Jahan’s interview. He did not raise any objection
15 to its contents. And the interview was conducted with an
16 interpreter, the questions posed were designed to elicit
17 details of Jahan’s asylum claim, and the responses Jahan
18 provided did not indicate that he was reluctant to answer
19 questions. See Zhang v. Holder, 585 F.3d 715, 725 (2d Cir.
20 2009).
21 At his credible fear interview, Jahan testified that Awami
22 League members beat him on eight occasions. However, at his
23 hearing, he testified inconsistently that he was beaten on only
24 four occasions. When given an opportunity to explain his
3
1 interview statement that he had been beaten eight times, Jahan
2 claimed that he had been discussing incidents during which he
3 was threatened but not beaten, as well as the four times he was
4 beaten. The IJ was not compelled to credit that explanation
5 because, for example, Jahan had an opportunity to clarify that
6 he had been beaten only four times later in his interview, but
7 he did not do so. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d
8 Cir. 2005).
9 In addition, Jahan testified that he fears returning to
10 Bangladesh because unidentified individuals lodged a false
11 criminal complaint against him. Jahan’s omission of this claim
12 from his written statement further undermined his credibility.
13 See Xiu Xia Lin, 534 F.3d at 166 n.3 (“An inconsistency and an
14 omission are . . . functionally equivalent.”). He did not
15 provide a compelling explanation for this omission. See
16 Majidi, 430 F.3d at 80. Nor could he explain why his father
17 sent certain evidence from Bangladesh, but failed to send
18 evidence he purportedly possessed regarding the false charges.
19 See id.
20 Given these inconsistencies that relate directly to the
21 bases of both Jahan’s claim of past harm and his fear of future
22 harm, the totality of the circumstances supports the agency’s
23 adverse credibility determination. See 8 U.S.C.
24 § 1158(b)(1)(B)(iii). That determination is dispositive of
4
1 asylum, withholding of removal, and CAT relief because all three
2 claims are based on the same factual predicate. See Paul v.
3 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).*
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of removal
6 that the Court previously granted in this petition is VACATED,
7 and any pending motion for a stay of removal in this petition
8 is DISMISSED as moot. Any pending request for oral argument
9 in this petition is DENIED in accordance with Federal Rule of
10 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
11 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
* The Government incorrectly argues that Jahan waived his
withholding of removal and CAT claims. The adverse credibility
determination, which Jahan challenges, served as the agency’s
only basis for denying those forms of relief.
5