Islam v. Barr ( 2020 )

18-2485
Islam v. Barr
BIA
Christensen, IJ
A206 421 090
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.
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 11th day of December, two thousand twenty.
PRESENT:
JON O. NEWMAN,
JOSÉ A. CABRANES,
MICHAEL H. PARK,
Circuit Judges.
_____________________________________
SAIFUL ISLAM,
Petitioner,
v. 18-2485
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Salim Sheikh, Esq., New York, NY.
FOR RESPONDENT: Ethan P. Davis, Acting Assistant
Attorney General; Anthony C.
Payne, Assistant Director; Joseph
D. Hardy, Trial 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 Saiful Islam, a native and citizen of
Bangladesh, seeks review of a July 25, 2018, decision of the
BIA affirming an August 9, 2017, decision of an Immigration
Judge (“IJ”) denying Islam’s application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Saiful Islam, No. A 206 421
090 (B.I.A. July 25, 2018), aff’g No. A 206 421 090 (Immig.
Ct. N.Y. City Aug. 9, 2017). We assume the parties’
familiarity with the underlying facts and procedural history.
Under the circumstances of this case, we have reviewed
both the BIA’s and IJ’s decisions. See Yun-Zui Guan v.
Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable
standards of review are well established. See 8 U.S.C.
§ 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76
(2d Cir. 2018) (reviewing adverse credibility determination
under a substantial evidence standard). “Considering the
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totality of the circumstances, and all relevant factors, a
trier of fact may base a credibility determination on . . .
the consistency between the applicant’s or witness’s written
and oral statements . . . , the internal consistency of each
such statement, the consistency of such statements with other
evidence of record . . . , and any inaccuracies or falsehoods
in such statements, . . . 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); accord Hong Fei Gao, 891 F.3d at 76. Substantial
evidence supports the agency’s determination that Islam was
not credible as to his claim that he was persecuted in
Bangladesh by the Awami League (“AL”) on account of his
support for the Bangladesh Nationalist Party.
The agency reasonably relied on discrepancies between
Islam’s statements at his credible fear interview and his
subsequent testimony. As an initial matter, the interview
record bore sufficient “hallmarks of reliability” because the
interview was memorialized in a typewritten list of questions
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and answers, Islam had an interpreter, his responses
indicated that he understood the questions, and the questions
included inquiries about past harm and fear of future harm as
needed to elicit an asylum claim. Ming Zhang v. Holder, 585
F.3d 715, 725 (2d Cir. 2009). The asylum officer also told
Islam at the start of the interview that his statements would
be kept confidential, and the interview record does not reveal
that Islam was reluctant to reveal information. Nor does it
appear that Islam had reason to be particularly wary of
government officials: he was never arrested in Bangladesh,
and he testified that he was ignored, not harassed, when he
tried to seek help from the police. See Ramsameachire v.
Ashcroft, 357 F.3d 169, 180 (2d Cir. 2004) (“[A]n interview
may be deemed less reliable if the alien appears to have been
reluctant to reveal information . . . because of prior
interrogation sessions or other coercive experiences in his
or her home country.”). Moreover, although Islam declined
to have his attorney present for the interview, he was
represented and his opportunity to speak with an attorney
before the interview lessens the likelihood that it was
coercive. See Yun-Zui Guan, 432 F.3d at 397 n.6 (“[A]n
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alien’s mere recitation that he was nervous or felt pressured
during an airport interview will not automatically prevent
the IJ or BIA from relying [o]n statements in such interviews
when making adverse credibility determinations.”). Because
the record of the credible fear interview was reliable,
substantial evidence supports the agency’s determination that
Islam was not credible.
First, Islam’s testimony and statements at his credible
fear interview were inconsistent regarding the first time
that he was threatened by AL supporters. Although Islam
testified that he did not mention a 2012 incident at his
interview because he was afraid, the IJ was not required to
accept this explanation, particularly as it does not explain
why he identified other harm and stated that his first
interaction with the AL was a warning in 2013. See Majidi
v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner
must do more than offer a plausible explanation for his
inconsistent statements to secure relief; he must demonstrate
that a reasonable fact-finder would be compelled to credit
his testimony.” (internal quotation marks and citations
omitted)).
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Second, Islam omitted from his credible fear interview
the most serious incident to which he testified, an alleged
August 2012 beating resulting in his hospitalization. The
IJ reasonably rejected Islam’s explanation that he was afraid
and thought immigration officials would think he was a bad
person because he disclosed another incident where he escaped
an attack. See id. These “dramatically different” accounts
as to the timeline of events and whether Islam was ever
physically harmed provide substantial evidence for the
adverse credibility determination. Id.
Third, as the IJ noted, Islam’s testimony and statements
at his credible fear interview were inconsistent regarding
the date he escaped a confrontation with AL members. Fourth,
Islam’s testimony and statements at his credible fear
interview were inconsistent regarding whether there was a
complaint filed against him with the police. The IJ was not
required to accept Islam’s explanation that he was not sure
if a complaint was filed because it did not explain why Islam
told the asylum officer that there was a false complaint.
See id. Fifth, Islam’s testimony was inconsistent with his
father’s affidavit regarding whether he was alone when he was
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threatened in February 2012. The IJ was not required to
credit Islam’s explanation that his father was in a rickshaw
close behind him given that Islam did not mention this fact
when asked if he was alone. See id.
Finally, the agency also reasonably concluded that Islam
failed to rehabilitate his credibility with reliable
corroborating evidence. See Biao Yang v. Gonzales, 496 F.3d
268, 273 (2d Cir. 2007) (“An applicant’s failure to
corroborate his . . . testimony may bear on credibility,
because the absence of corroboration in general makes an
applicant unable to rehabilitate testimony that has already
been called into question.”). The IJ reasonably declined to
give weight to affidavits from Islam’s family and colleagues
that contained identical language and included language from
Islam’s asylum application. See Mei Chai Ye v. U.S. Dep’t
of Justice, 489 F.3d 517, 524 (2d Cir. 2007) (“embrac[ing]
the commonsensical notion that striking similarities between
affidavits are an indication that the statements are
‘canned’”); Singh v. BIA, 438 F.3d 145, 148 (2d Cir. 2006)
(upholding adverse credibility determination partly based on
significantly similar language in supporting affidavits).
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Given the inconsistencies between the credible fear
interview and Islam’s testimony, Islam’s omission of the most
serious incident of harm at his interview, the inconsistency
between Islam’s and his father’s statements, and the
similarities among the affidavits, substantial evidence
supports the adverse credibility determination. See Xiu Xia
Lin, 534 F.3d at 167; Singh, 438 F.3d at 148. Because Islam’s
claims were all based on the same factual predicate, the
adverse credibility determination is dispositive of asylum,
withholding of removal, and CAT relief. 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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