Mohammed v. Garland

18-2862-ag
Mohammed v. Garland
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 23rd day of April, two thousand twenty-one.
PRESENT: JOSÉ A. CABRANES,
ROSEMARY S. POOLER,
JOSEPH F. BIANCO,
Circuit Judges.
ALHASSAN MOHAMMED,
Petitioner, 18-2862-ag
v.
MERRICK B. GARLAND, UNITED STATES ATTORNEY
GENERAL,
Respondent.
FOR PETITIONER: Raymond Lo, Jersey City, NJ.
FOR RESPONDENT: Brian M. Boynton, Acting Assistant
Attorney General; Holly M. Smith, Senior
Litigation Counsel; Christin M. Whitacre,
Trial Attorney, Office of Immigration
Litigation, United States Department of
Justice, Washington, DC.
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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 Alhassan Mohammed, a native and citizen of Ghana, seeks review of a September
14, 2018 decision of the BIA affirming a September 5, 2017 decision of an Immigration Judge (“IJ”)
denying Mohammed’s application for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Mohammed, No. A 208 123 391 (B.I.A. Sept. 14, 2018),
aff’g No. A 208 123 391 (Immigr. Ct. N.Y.C. Sept. 5, 2017). We assume the parties’ familiarity with
the underlying facts and procedural history.
We review the IJ’s decision as modified by the BIA—that is, without consideration of the IJ’s
alternative burden holding that the BIA did not reach. See Xue Hong Yang v. U.S. Dep’t of Just., 426
F.3d 520, 522 (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).
“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 . . . account, the consistency between the applicant’s or
witness’s written and oral statements . . . , the internal consistency of each such statement, [and] the
consistency of such statements with other evidence of record . . . without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant
factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility determination unless, from
the totality of the circumstances, 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 adverse credibility determination here.
Mohammed’s testimony was inconsistent with the record evidence regarding his
organizational affiliations. Mohammed submitted a letter from a person identifying himself as the
Area Assistant Chief of Muslim Youth of Zonge Kumasi, asserting that Mohammed “is a member
who has contributed to the success of the activities of our organization,” but Mohammed testified
that he was not a member of that group. Although Mohammed argues that he explained this
discrepancy by testifying that it is possible that the letter’s author knows him because the author is
“kind of the king in the community,” this assertion does not explain why the letter contradicted
Mohammed’s testimony. In addition, Mohammed’s affidavit differed with a second letter with respect
to the identity of his abusers: Mohammed referred to them only as “Muslim youth,” but a letter from
the owner of a neighboring business asserted that Mohammed’s business was burned down by
members of a Muslim youth group called “the citizen of vigilant.” Mohammed does not challenge
the agency’s reliance on this discrepancy. Although he now argues that his limited education and the
time that elapsed between the past harm and his hearing account for any inconsistencies, he did not
present these explanations to the agency, nor are they compelling as they do not resolve the
inconsistencies. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more
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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
omitted)); Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004) (“[W]e require petitioner to raise issues to the
BIA in order to preserve them for judicial review.” (internal quotation marks, alterations, and emphasis
omitted)).
The negative demeanor finding is also supported by the record, which reflects that
Mohammed was unresponsive to questioning. See 8 U.S.C. § 1158(b)(1)(B)(iii); Majidi, 430 F.3d at 81
n.1 (recognizing that particular deference is given to the trier of fact’s assessment of demeanor).
The agency reasonably concluded that portions of Mohammed’s testimony were implausible.
We defer to the agency’s implausibility findings so long as they are “tethered to record evidence, and
there is nothing else in the record from which a firm conviction of error could properly be derived.”
Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2007); see also Siewe v. Gonzales, 480 F.3d 160, 168–69
(2d Cir. 2007) (while “bald” speculation is an impermissible basis for an adverse credibility finding,
“[t]he speculation that inheres in inference is not ‘bald’ if the inference is made available to the
factfinder by record facts, or even a single fact, viewed in the light of common sense and ordinary
experience”). The IJ concluded that portions of the testimony were not plausible for three reasons:
first, that Mohammed would be accused of being gay without having any idea why the accusation was
made; second, that a person in his position could be driven out of the community by a youth group
without ever attempting to obtain assistance from either a religious leader or the government; and
third, the IJ found “overall implausible” Mohammed’s account of a phone conversation with a man
who answered his wife’s phone after Mohammed’s store was burned. The first finding—that it is
implausible that Mohammed could be accused of being gay without knowing why—gives us pause, as
Mohammed may not have known what others thought about him. However, even assuming arguendo
that this was error, discarding this finding would not change the outcome. The IJ’s remaining
implausibility findings are tethered to the record. Mohammed testified that he was a person with
standing in his community as a married father and business owner who regularly attended religious
services. Further, he was able to obtain a letter in support of his asylum application from a community
leader despite the accusation of homosexuality.
Finally, having questioned Mohammed’s credibility, the agency did not err in concluding that
the absence of reliable corroborating evidence further undermined Mohammed’s credibility. “An
applicant’s failure to corroborate his or her 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.” Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The agency reasonably
afforded limited weight to the letters because the authors were unavailable for cross-examination and,
as noted above, two of the letters contradicted Mohammed’s testimony. See Y.C. v. Holder, 741 F.3d
324, 332, 334 (2d Cir. 2013) (holding that “[w]e generally defer to the agency’s evaluation of the weight
to be afforded an applicant’s documentary evidence” and upholding BIA’s decision not to credit letter
from applicant’s spouse in China); see also In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A.
2010) (finding that letters from alien’s friends and family were insufficient to provide substantial
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support for alien’s claims because they were from interested witnesses not subject to cross-
examination), overruled on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130, 133–38 (2d Cir. 2012).
As the IJ noted, Mohammed presented no other evidence to corroborate that his business was burned,
that the group that targeted him existed, or that the Ghanaian government was unable to control such
groups.
In sum, given the inconsistencies, the agency’s demeanor and implausibility findings, and the
absence of reliable corroborating evidence, the agency’s adverse credibility determination is supported
by substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163–64. That
determination is dispositive of asylum, withholding of removal, and CAT relief because all three forms
of relief are based on the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir.
2006).
CONCLUSION
We have considered all of Mohammed’s arguments and find them without merit. For the
foregoing reasons, the petition for review is DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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