Chowdhury v. Garland ( 2022 )

20-3249
Chowdhury v. Garland
BIA
Zagzoug, IJ
A206 997 582
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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY
NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 22nd day of December, two thousand twenty-
two.
PRESENT:
JON O. NEWMAN,
MICHAEL H. PARK,
EUNICE C. LEE,
Circuit Judges.
_____________________________________
ZUBAYER ZAMAN CHOWDHURY,
Petitioner,
v. 20-3249
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Dilli Raj Bhatta, Esq., Bhatta Law
& Associates, New York, NY.
FOR RESPONDENT: Brian Boynton, Acting Assistant
Attorney General; Claire L.
Workman, Senior Litigation
Counsel; Rosanne M. Perry,
Attorney, Office of Immigration
Litigation, United States
Department of Justice, Washington,
DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Zubayer Zaman Chowdhury, a native and citizen
of Bangladesh, seeks review of an August 28, 2020, decision
of the BIA affirming a June 21, 2018, decision of an
Immigration Judge (“IJ”) denying his application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Zubayer Zaman Chowdhury, No.
A206 997 582 (B.I.A. Aug. 28, 2020), aff’g No. A206 997 582
(Immigr. Ct. N.Y.C. Jun. 21, 2018). We assume the parties’
familiarity with the underlying facts and procedural history.
Under the circumstances, we have reviewed both the IJ's
and BIA’s decisions. See Wangchuck v. Dep’t of Homeland
Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable
standards of review are well established. See 8 U.S.C.
§ 1252(b)(4)(B) (“[T]he administrative findings of fact are
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conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.”); Hong Fei Gao v.
Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing adverse
credibility determination for “substantial evidence”).
“Considering the totality of the circumstances, and all
relevant factors, a trier of fact may base a credibility
determination on the demeanor, candor, or responsiveness of
the applicant or witness, the inherent plausibility of the
applicant’s or witness’s account,” inconsistencies in the
record, “or any other relevant factor.” 8 U.S.C.
§ 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
credibility determination unless . . . it is plain that no
reasonable fact-finder could make such an adverse credibility
ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
2008). Substantial evidence supports the adverse credibility
determination.
The agency reasonably deemed Chowdhury’s testimony
implausible. See Wensheng Yan v. Mukasey, 509 F.3d 63, 66
(2d Cir. 2007) (“[A]n IJ is entitled to consider whether the
applicant’s story is inherently implausible.”). Chowdhury
alleged past persecution by the Awami League because of his
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involvement with the Bangladesh Nationalist Party (”BNP”).
He testified that during the 16-year period from 1998 to 2014,
he was a joint organizational secretary for the BNP, a general
member of the BNP, a member of the BNP’s youth wing, or a
member of the BNP’s student wing. However, he denied
awareness of any violence or incitement to violence by or
attributed to BNP members. He stated that he had never heard,
read, or seen news articles about BNP violence. However, the
record includes extensive evidence in the form of human-
rights reports, news articles, and other country-conditions
evidence of the BNP engaging in or being accused of violent
action against political opponents, including the Awami
League and religious minorities. Given the extensive
evidence of BNP violence and Chowdhury’s testimony about his
role and longstanding involvement in the party, the
implausibility finding is tethered to the record. See Siewe
v. Gonzales, 480 F.3d 160, 169 (2d Cir. 2007) (“So long as an
inferential leap is tethered to the evidentiary record, we
will accord deference to the finding.”).
The adverse credibility determination is further
supported by the IJ’s demeanor finding to which we give
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particular deference. See Tu Lin v. Gonzales, 446 F.3d 395,
400 (2d Cir. 2006). The IJ found that Chowdhury’s testimony
was “scripted,” “memorized,” and “rehearsed.” In addition
to the deference due that finding, it is supported by the
IJ’s determination that Chowdhury was evasive when questioned
about BNP violence. See Li Hua Lin v. U.S. Dep’t of Just.,
453 F.3d 99, 109 (2d Cir. 2006) (“[G]iv[ing] particular
deference to . . . the adjudicator’s observation of the
applicant’s demeanor, in recognition of the fact that the
IJ’s ability to observe . . . demeanor places her in the best
position to evaluate whether apparent problems in the
witness’s testimony suggest a lack of credibility or, rather,
can be attributed to an innocent cause such as difficulty
understanding the question.” (citation and quotation marks
omitted)).
Lastly, the agency reasonably concluded that Chowdhury
failed to rehabilitate his testimony with reliable
corroborating evidence. See Biao Yang v. Gonzales, 496 F.3d
268, 273 (2d Cir. 2007) (“An applicant’s failure to
corroborate his or her testimony may bear on credibility,
because the absence of corroboration in general makes an
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applicant unable to rehabilitate testimony that has already
been called into question.”). Contrary to Chowdhury’s
position, the agency did not err in giving minimal weight to
letters from his family members, friends, neighbors, and
fellow BNP members because the letters were not independent
of the asylum application, the authors were not available for
cross-examination, and his family members were interested
parties. See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir.
2013) (“We defer to the agency’s determination of the weight
afforded to an alien’s documentary evidence.”). Nor was the
agency required to credit noncontemporaneous summaries of
medical treatment, where contemporaneous records appear to
have been available but not produced, and where the summaries
did not establish who attacked Chowdhury or why, or resolve
the implausibility of Chowdhury’s testimony. Id.Given the implausible testimony, the deference due the
demeanor finding, and the lack of reliable objective
evidence, substantial evidence supports the adverse
credibility determination. See Xiu Xia Lin, 534 F.3d at 167.
The adverse credibility determination is dispositive because
asylum, withholding of removal, and CAT relief were all based
6
on the same factual predicate. See Paul v. Gonzales, 444
F.3d 148, 156–57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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