Khorshe Alam v. Garland ( 2023 )

21-6041
Khorshe Alam v. Garland
BIA
Thompson, IJ
A208 896 231
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.
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 16th day of March, two thousand twenty-
5 three.
6
7 PRESENT:
8 ROBERT D. SACK,
9 RAYMOND J. LOHIER, JR.,
10 WILLIAM J. NARDINI,
11 Circuit Judges.
12 _____________________________________
13
14 MOHAMMAD KHORSHE ALAM,
15 Petitioner,
16
17 v. 21-6041
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Thomas V. Massucci, New York, NY.
25
26 FOR RESPONDENT: Brian M. Boynton, Acting Assistant
27 Attorney General; Linda S.
28 Wernery, Assistant Director; Sarah
1 Byrd, Trial Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, DC.
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
8 is GRANTED.
9 Petitioner Mohammad Khorshe Alam, a native and citizen
10 of Bangladesh, seeks review of a January 15, 2021 decision of
11 the BIA affirming an October 15, 2018 decision of an
12 Immigration Judge (“IJ”) denying his application for asylum,
13 withholding of removal, and relief under the Convention
14 Against Torture (“CAT”). In re Mohammad Khorshe Alam, No.
15 A208 896 231 (B.I.A. Jan. 15, 2021), aff’g No. A 208 896 231
16 (Immig. Ct. N.Y. City Oct. 15, 2018). We assume the parties’
17 familiarity with the underlying facts and procedural history.
18 We have considered both the IJ’s and the BIA’s opinions.
19 See Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528
20 (2d Cir. 2006). We review an adverse credibility
21 determination “under the substantial evidence standard,” Hong
22 Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018), and
23 “administrative findings of fact are conclusive unless any
2
1 reasonable adjudicator would be compelled to conclude to the
2 contrary,” 8 U.S.C. § 1252(b)(4)(B). “Considering the
3 totality of the circumstances, and all relevant factors, a
4 trier of fact may base a credibility determination on . . .
5 the inherent plausibility of the applicant’s or witness’s
6 account, the consistency between the applicant’s or witness’s
7 written and oral statements . . . the consistency of such
8 statements with other evidence of record . . . , and any
9 inaccuracies or falsehoods in such statements, without regard
10 to whether an inconsistency, inaccuracy, or falsehood goes to
11 the heart of the applicant’s claim, or any other relevant
12 factor.” Id. § 1158(b)(1)(B)(iii). The agency found Khorshe
13 Alam’s testimony consistent as to his beating and the burning
14 of his store by members of the Awami League, but determined
15 that his claim was not credible because he submitted two
16 identical affidavits from two different members of the
17 Bangladesh National Party. We cannot conclude that this
18 finding constitutes substantial evidence under the “totality
19 of the circumstances.” 8 U.S.C. § 1158(b)(1)(B)(iii).
20 “When an asylum applicant himself has submitted two or
21 more affidavits in support of his application that, he says,
3
1 have been provided by different persons, but which are
2 strikingly similar in their structure or language, our
3 [C]ourt has allowed an [IJ] to treat those similarities as
4 evidence supporting an adverse credibility finding.” Mei
5 Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 519 (2d Cir.
6 2007). We have previously upheld an adverse credibility
7 determination based on “nearly identical language in the
8 written affidavits allegedly provided by different people”
9 where the IJ further identified inconsistencies, omissions,
10 vague testimony, and a lack of specific corroboration. Singh
11 v. BIA, 438 F.3d 145, 148 (2d Cir. 2006).
12 Here, the agency failed to consider the totality of the
13 circumstances. Neither the BIA’s nor the IJ’s decisions
14 discuss Khorshe Alam’s other documentary evidence, which
15 included country conditions evidence and additional
16 affidavits from Khorshe Alam’s mother, sister-in-law,
17 brother, cousins, sister, aunt, other shopkeepers, and a
18 medical doctor. “[U]nder the substantial evidence standard,”
19 the adverse credibility determination must “be supported by
20 reasonable, substantial and probative evidence in the record
21 when considered as a whole.” Hong Fei Gao, 891 F.3d at 76
4
1 (quotation marks omitted).
2 Furthermore, the agency’s conclusion that the affidavits
3 were fabricated is itself not supported by substantial
4 evidence. To begin, the affidavits were notarized by the
5 same person on the same day in Bangladesh, indicating that
6 they were prepared together or at the same time. Indeed,
7 Khorshe Alam testified that his father obtained the
8 affidavits for him and that though the affiants may have
9 copied each other, they had witnessed the same event and the
10 information in the affidavits was true. See Mei Chai Ye, 489
11 F.3d at 524 (acknowledging that similar language in
12 affidavits could be owed to affiants “relat[ing] their
13 stories to the same scrivener”). The record similarly does
14 not support the IJ’s conclusion that the affidavits were
15 fabricated because they were mailed from Dubai rather than
16 Bangladesh. The IJ relied on a DHL mailing label that listed
17 the address of the sender as “Mohammad Liton Patwary,
18 Bangladesh, CO First Flight Courier LLC Dubai VL.” But
19 Khorshe Alam testified that the sender was his cousin who
20 lived in Bangladesh, not Dubai, that the documents were sent
21 through DHL, and that he did not know why Dubai was mentioned.
5
1 While the label lists a sender in Bangladesh and a courier
2 company seemingly based in Dubai, there is nothing on the
3 label to establish that the documents were turned over to the
4 courier company for mailing in Dubai rather than in
5 Bangladesh.
6 For the foregoing reasons, the petition for review is
7 GRANTED, the BIA’s decision is VACATED, and the case is
8 REMANDED for further proceedings consistent with this ORDER.
9 All pending motions and applications are DENIED and stays
10 VACATED.
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe,
13 Clerk of Court
6