Hossain-Chowdhurry v. Garland ( 2021 )

19-2316
Hossain-Chowdhurry v. Garland
BIA
Douchy, IJ
A208 678 668
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 9th day of June, two thousand twenty-one.
5
6 PRESENT:
7 DEBRA ANN LIVINGSTON,
8 Chief Judge,
9 JOSEPH F. BIANCO,
10 WILLIAM J. NARDINI,
11 Circuit Judges.
12 _____________________________________
13
14 MOHAMMED ALAMGIR HOSSAIN-
15 CHOWDHURRY, A.K.A. MUHAMMAD
16 NAJIN MUTAR KHUDAYIR
17 Petitioner,
18
19 v. 19-2316
20 NAC
21 MERRICK B. GARLAND, UNITED
22 STATES ATTORNEY GENERAL,
23 Respondent.
24 _____________________________________
25
26 FOR PETITIONER: Ramesh K. Shrestha, Esq., New
27 York, NY.
1 FOR RESPONDENT: Joseph Hunt, Assistant Attorney
2 General; Carl McIntyre, Assistant
3 Director; Virginia Lum, Attorney,
4 Office of Immigration Litigation,
5 United States Department of
6 Justice, Washington, DC.
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Mohammed Alamgir Hossain-Chowdhurry, a native
12 and citizen of Bangladesh, seeks review of a June 28, 2019,
13 decision of the BIA affirming a February 8, 2018, decision of
14 an Immigration Judge (“IJ”) denying asylum, withholding of
15 removal, and protection under the Convention Against Torture
16 (“CAT”). In re Mohammed Alamgir Hossain-Chowdhurry, No. A
17 208 678 668 (B.I.A. June 28, 2019), aff’g No. A 208 678 668
18 (Immig. Ct. N.Y. City Feb. 8, 2018). We assume the parties’
19 familiarity with the underlying facts and procedural history.
20 We have considered both the IJ’s and the BIA’s opinions
21 “for the sake of completeness.” Wangchuck v. Dep’t of
22 Homeland Security, 448 F.3d 524, 528 (2d Cir. 2006). The
23 applicable standards of review are well established. See 8
24 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d
25 67, 76 (2d Cir. 2018) (reviewing adverse credibility
2
1 determination for substantial evidence). An IJ may,
2 “[c]onsidering the totality of the circumstances” base a
3 credibility finding on an asylum applicant’s “demeanor,
4 candor, or responsiveness,” the plausibility of his account,
5 and inconsistencies in his statements or between his
6 statements and other evidence, “without regard to whether an
7 inconsistency, inaccuracy, or falsehood goes to the heart of
8 the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). We
9 defer to an IJ’s adverse credibility determination “unless,
10 from the totality of the circumstances, it is plain that no
11 reasonable fact-finder could make such an adverse credibility
12 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
13 2008). Substantial evidence supports the agency’s
14 determination that Hossain-Chowdhurry was not credible as to
15 his claim of past persecution by members of a rival political
16 party.
17 In the instant case, we defer to the IJ’s determination
18 that Hossain-Chowdhurry’s change in demeanor when confronted
19 with inconsistencies undermined his credibility. See Jin
20 Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d Cir.
21 2005) (giving “particular deference to credibility
22 determinations that are based on the adjudicator’s
3
1 observation of the applicant’s demeanor”). The
2 inconsistencies identified by the IJ also provide further
3 support for the demeanor finding and the adverse credibility
4 determination as a whole. See Li Hua Lin v. U.S. Dep’t of
5 Justice, 453 F.3d 99, 109 (2d Cir. 2006) (“We can be . . .
6 more confident in our review of observations about an
7 applicant’s demeanor where . . . they are supported by
8 specific examples of inconsistent testimony.”).
9 Additionally, the IJ reasonably relied on internal
10 inconsistencies in Hossain-Chowdhurry’s testimony regarding
11 a past application for a U.S. visa and whether he previously
12 travelled outside of Bangladesh, including while he was
13 allegedly in hiding from members of a rival political party.
14 The IJ also reasonably relied on Hossain-Chowdhurry’s lack of
15 responsiveness or clarity as to when he operated and closed
16 his business in Bangladesh and whether a trip to India during
17 the period he was in hiding was related to his business.
18 Taken together these inconsistencies about his travel and
19 business call into question the timeline of events and
20 undermine his credibility as a whole. See Xiu Xia Lin, 534
21 F.3d at 167 (explaining that cumulative effect of even
4
1 collateral inconsistencies may provide substantial evidence
2 for an adverse credibility determination).
3 The IJ also reasonably found that Hossain-Chowdhurry’s
4 documentary evidence failed to rehabilitate his inconsistent
5 and unresponsive testimony. See Biao Yang v. Gonzales, 496
6 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s failure to
7 corroborate his or her testimony may bear on credibility,
8 because the absence of corroboration in general makes an
9 applicant unable to rehabilitate testimony that has already
10 been called into question.”). The weight afforded to an
11 applicant’s documentary evidence is largely a matter of
12 agency discretion. See Y.C. v. Holder, 741 F.3d 324, 332 (2d
13 Cir. 2013). We conclude that the agency did not err in
14 declining to credit letters Hossain-Chowdhurry submitted from
15 leaders of his political party, family members, and alleged
16 eyewitnesses to his threats and assaults by members of a rival
17 party because the authors were unavailable for cross-
18 examination and his family members were interested parties.
19 Id. at 334 (upholding agency’s decision not to credit letter
20 from applicant’s spouse). Moreover, none of the documentary
21 evidence resolves the inconsistencies in Hossain-Chowdhurry’s
22 testimony.
5
1 Given the issues with Hossain-Chowdhurry’s demeanor, the
2 inconsistencies in his testimony, and the lack of reliable
3 corroboration, substantial evidence supports the adverse
4 credibility determination. See 8 U.S.C. § 1158(b)(1)(B)(ii);
5 Likai Gao v. Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020)
6 (“[E]ven a single inconsistency might preclude an alien from
7 showing that an IJ was compelled to find him credible.
8 Multiple inconsistencies would so preclude even more
9 forcefully.”). In this case, the adverse credibility
10 determination is dispositive of asylum, withholding of
11 removal, and CAT relief because all forms of relief rely on
12 the same discredited factual predicate. See Paul v.
13 Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).
14 For the foregoing reasons, the petition for review is
15 DENIED. All pending motions and applications are DENIED and
16 stays VACATED.
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe,
19 Clerk of Court
6