Khan v. Garland

20-4058
Khan v. Garland
BIA
Vomacka, IJ
A206 283 730
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 30th day of March, two thousand twenty-
5 three.
6
7 PRESENT:
8 RICHARD C. WESLEY,
9 STEVEN J. MENASHI,
10 EUNICE C. LEE,
11 Circuit Judges.
12 _____________________________________
13
14 APPEL MAHMUD KHAN,
15 Petitioner,
16
17 v. 20-4058
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Usman B. Ahmad, Esq., Long Island
25 City, NY.
26
27 FOR RESPONDENT: Brian Boynton, Acting Assistant
28 Attorney General; Paul Fiorino,
1 Senior Litigation Counsel; Robert
2 Dale Tennyson, Jr., Trial
3 Attorney, Office of Immigration
4 Litigation, United States
5 Department of Justice, Washington,
6 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 Appel Mahmud Khan, a native and citizen of
12 Bangladesh, seeks review of a September 15, 2020, decision of
13 the BIA affirming a May 23, 2018, decision of an Immigration
14 Judge (“IJ”) denying his application for asylum, withholding
15 of removal, and relief under the Convention Against Torture
16 (“CAT”). In re Appel Mahmud Khan, No. A 206 283 730 (B.I.A.
17 Sept. 15, 2020), aff’g No. A 206 283 730 (Immig. Ct. N.Y. City
18 May 23, 2018). We assume the parties’ familiarity with the
19 underlying facts and procedural history.
20 We have reviewed the IJ’s and the BIA’s opinions “for
21 the sake of completeness.” Wangchuck v. Dep’t of Homeland
22 Sec., 448 F.3d 524, 528 (2d Cir. 2006). “Congress has
23 specified that ‘the administrative findings of fact are
24 conclusive unless any reasonable adjudicator would be
2
1 compelled to conclude to the contrary.’” Singh v. Garland,
2 11 F.4th 106, 112–13 (2d Cir. 2021) (quoting 8 U.S.C.
3 § 1252(b)(4)(B)). Accordingly, we review adverse
4 credibility determinations for “substantial evidence.” Hong
5 Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018).
6 “Considering the totality of the circumstances, and all
7 relevant facts, a trier of fact may base a credibility
8 determination on . . . the consistency between the applicant’s
9 or witness’s written and oral statements . . . the consistency
10 of such statements with other evidence of record . . . and
11 any inaccuracies or falsehoods in such statements, without
12 regard to whether an inconsistency, inaccuracy, or falsehood
13 goes to the heart of the applicant’s claim . . . .” 8 U.S.C.
14 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility
15 determination unless, from the totality of the circumstances,
16 it is plain that no reasonable fact-finder could make such an
17 adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534
18 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d
19 at 76.
20 Substantial evidence supports the agency’s adverse
21 credibility determination. Khan alleged that he was severely
3
1 beaten in 2012 and 2013 by members of the Awami League (“AL”)
2 because of his support of the Bangladesh Nationalist Party
3 (“BNP”), and that both attacks resulted in his
4 hospitalization.
5 As an initial matter, the IJ did not err in admitting
6 the record of Khan’s asylum interview as impeachment
7 evidence, or in relying on the record of that interview in
8 addressing credibility. Impeachment evidence may be
9 submitted at any time. See Immigr. Ct. Prac. Man., Ch.
10 3.1(b)(2)(B). 1 Moreover, the agency may rely on
11 inconsistencies between an interview statements and hearing
12 testimony if the interview record is reliable. See 8 U.S.C.
13 § 1158(b)(B)(iii); Diallo v. Gonzales, 445 F.3d 624, 632 (2d
14 Cir. 2006). Khan’s asylum interview bore sufficient indicia
15 of reliability as it was typed, memorialized in a question-
16 and-answer format, conducted in his native language of
17 Bengali, and sworn and dated. Diallo, 445 F.3d at 632–33.
18 As the agency found, a comparison of the interview record
19 and Khan’s later statements and testimony revealed
20 inconsistencies about when he attended BNP rallies, the
1 Available at https://www.justice.gov/eoir/reference-
materials/ic/chapter-3/1.
4
1 severity of alleged beatings in 2012 and 2013, whether he
2 reported both attacks to police, and how many people attended
3 the 2012 rally (a few hundred or a few thousand). These
4 inconsistencies constitute substantial evidence for the
5 adverse credibility determination, particularly as they
6 relate directly to the alleged persecution: “[T]he greater
7 the importance of the fact upon which inconsistency is found
8 for the success of the petition . . . the more likely it is
9 that a truthful account would not have included the
10 inconsistency.” Singh v. Garland, 6 F.4th 418, 431 (2d Cir.
11 2021); see also Likai Gao v. Barr, 968 F.3d 137, 145 n.8 (2d
12 Cir. 2020) (“[E]ven a single inconsistency might preclude an
13 alien from showing that an IJ was compelled to find him
14 credible. Multiple inconsistencies would so preclude even
15 more forcefully.”).
16 The adverse credibility determination is bolstered by
17 the IJ’s demeanor finding to which we give particular
18 deference, see Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d
19 99, 109 (2d Cir. 2006), and the lack of reliable
20 corroboration, Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
21 Cir. 2007) (“An applicant’s failure to corroborate his or her
5
1 testimony may bear on credibility, because the absence of
2 corroboration in general makes an applicant unable to
3 rehabilitate testimony that has already been called into
4 question.”). The agency did not err in declining to credit
5 Khan’s documentary evidence. Letters from Khan’s former co-
6 workers did not clarify whether he reported attacks to the
7 police, and the authors were not available for cross-
8 examination. See Y.C. v. Holder, 741 F.3d 324, 332, 334 (2d
9 Cir. 2013) (holding that weight of documentary evidence is
10 within agency’s discretion); see also Likai Gao, 968 F.3d at
11 149 (holding that IJ acted within her discretion in declining
12 to credit evidence from witnesses who were unavailable for
13 cross-examination). And the IJ reasonably gave limited
14 weight to medical records, particularly as the letter
15 confirming treatment for leg and chest injuries was from a
16 psychiatrist. See Y.C., 741 F.3d at 332.
17 Given the inconsistencies, the IJ’s demeanor finding,
18 and the lack of reliable corroboration, substantial evidence
19 supports the adverse credibility determination. See 8 U.S.C.
20 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167; Biao Yang,
21 496 F.3d at 272–73. The adverse credibility determination
6
1 is dispositive of asylum, withholding of removal, and CAT
2 relief because all three claims are based on the same factual
3 predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d
4 Cir. 2006).
5 For the foregoing reasons, the petition for review is
6 DENIED. All pending motions and applications are DENIED and
7 stays VACATED.
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe,
10 Clerk of Court
7