Filed: Jan. 27, 2017
Latest Update: Mar. 03, 2020
Summary: 15-729 Hossain v. Yates BIA Christensen, IJ A201 291 732 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 TH
Summary: 15-729 Hossain v. Yates BIA Christensen, IJ A201 291 732 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..
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15-729
Hossain v. Yates
BIA
Christensen, IJ
A201 291 732
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.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 27th day of January , two thousand seventeen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 PIERRE N. LEVAL,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 AMIR HOSSAIN,
14 Petitioner,
15
16 v. 15-729
17 NAC
18 SALLY Q. YATES, ACTING UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent*.
21 _____________________________________
22
23 FOR PETITIONER: Salim Sheikh, New York, N.Y.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Anthony
27 C. Payne, Assistant Director; Lauren
28 E. Fascett, Trial Attorney; Abigail
29 E. Leach, Law Clerk, Office of
* Pursuant to Federal Rule of Appellate Procedure 43(c) (2), Acting Attorney General Sally Q. Yates is automatically
substituted for former Attorney General Loretta E. Lynch as Respondent.
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5
6 UPON DUE CONSIDERATION of this petition for review of a Board
7 of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
8 ADJUDGED, AND DECREED that the petition for review is DENIED.
9 Petitioner Amir Hossain, a native and citizen of Bangladesh,
10 seeks review of a February 18, 2015, decision of the BIA,
11 affirming a January 9, 2013, decision of an Immigration Judge
12 (“IJ”) denying Hossain’s application for asylum, withholding
13 of removal, and relief under the Convention Against Torture
14 (“CAT”). In re Amir Hossain, No. A201 291 732 (B.I.A. Feb. 18,
15 2015), aff’g No. A201 291 732 (Immig. Ct. N.Y. City Jan. 9, 2013).
16 We assume the parties’ familiarity with the underlying facts
17 and procedural history in this case.
18 Under the circumstances of this case, we have reviewed both
19 the BIA’s and IJ’s decisions. See Yun-Zui Guan v. Gonzales, 432
20 F.3d 391, 394 (2d Cir. 2005). The applicable standards of review
21 are well established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
22 Mukasey,
534 F.3d 162, 165-66 (2d Cir. 2008).
23 The governing REAL ID Act provides that the agency may,
24 “[c]onsidering the totality of the circumstances,” base a
25 credibility finding on an asylum applicant’s “demeanor, candor,
2
1 or responsiveness,” the plausibility of his account, and
2 inconsistencies in his statements and other record evidence
3 “without regard to whether” those inconsistencies go “to the
4 heart of the applicant’s claim.” 8 U.S.C.
5 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. “We
6 defer . . . to an IJ’s credibility determination unless . . .
7 it is plain that no reasonable fact-finder could make such an
8 adverse credibility ruling.” Xiu Xia
Lin, 534 F.3d at 167.
9 Further, “[a] petitioner must do more than offer a plausible
10 explanation for his inconsistent statements to secure relief;
11 he must demonstrate that a reasonable fact-finder would be
12 compelled to credit his testimony.” Majidi v. Gonzales, 430
13 F.3d 77, 80 (2d Cir. 2005) (internal quotation marks and
14 citations omitted). Substantial evidence supports the agency’s
15 determination that Hossain was not credible.
16 The agency reasonably relied on inconsistencies between
17 Hossain’s testimony and his border patrol interview. We
18 “exercise[s] caution” when reviewing border patrol interview
19 statements “because such interviews may be perceived . . . as
20 coercive or threatening . . . [and] aliens may not be entirely
21 forthcoming in the initial interview.” See Yun-Zui Guan,
432
22 F.3d at 396 (internal quotation marks and citations omitted).
23 The agency may nevertheless rely on border patrol interview
3
1 statements when assessing credibility if the interview record
2 “bears hallmarks of accuracy and reliability.” Ming Zhang v.
3 Holder, 585 F.3d 715, 721 (2d Cir. 2009) (quoting Ramsameachire
4 v. Ashcroft,
357 F.3d 169, 181 (2d Cir. 2004)). As the agency
5 observed, those hallmarks were present here: a Bengali
6 interpreter was used; the interviewer asked whether Hossain
7 “fear[ed] that [he] will be persecuted or tortured” if returned
8 to Bangladesh (that is, questions designed to elicit an asylum
9 and CAT claim); the questions and answers were memorialized in
10 a typewritten document; and at no point during the interview
11 did Hossain seem to have difficulty answering the interviewer’s
12 questions.
13 Because the record of the interview is reliable, the agency
14 was entitled to consider inconsistencies among Hossain’s border
15 patrol interview statements in assessing his credibility. See
16
Ramsameachire, 357 F.3d at 179-80. The inconsistencies arising
17 from those statements, moreover, were a proper basis for the
18 adverse credibility determination. See Xiu Xia Lin,
534 F.3d
19 at 166-67. In his border patrol interview, Hossain answered
20 “no” when asked if he feared persecution if sent back to
21 Bangladesh and explained that his purpose for coming to the
22 United States was “to live and work.” Two weeks later at his
23 credible fear interview, however, he stated that he left
4
1 Bangladesh because of political persecution and he feared that
2 he would be killed if returned. Hossain reiterated his claims
3 of past persecution and fear of returning to Bangladesh in his
4 application and testimony. The agency did not err in rejecting
5 Hossain’s various explanations, which did not resolve the
6 inconsistencies and only created further discrepancies. See
7 Majidi, 430 F.3d at 80; Ming
Zhang, 585 F.3d at 725.
8 The credibility determination was also properly based on
9 inconsistencies regarding whether the author of a supporting
10 letter was Hossain’s brother. See Xiu Xia
Lin, 534 F.3d at
11 166-67. The author, a Connecticut resident, stated in his
12 letter that Hossain is his “close friend” and “is like a younger
13 brother to [him].” However, Hossain testified that the author
14 was his biological brother, and he stated in his application
15 that the author had been directly involved with his political
16 party. The agency was not required to credit Hossain’s
17 explanations, and the inconsistencies reasonably called into
18 question whether his description of his family in Bangladesh
19 and claims of past persecution were fabricated. See Majidi,
430
20 F.3d at 80; Xiu Xia
Lin, 534 F.3d at 166-67.
21 Having properly questioned Hossain’s credibility, the
22 agency reasonably relied further on his failure to provide
23 sufficient corroborating evidence. See Biao Yang v. Gonzales,
5
1 496 F.3d 268, 273 (2d Cir. 2007). Hossain provided no
2 contemporaneous medical records or documentation to corroborate
3 that his store of seven years was destroyed in Bangladesh, or
4 even that he owned a store. He also gave increasingly
5 inconsistent explanations as to how he lost his medical records
6 in Mexico.
7 Substantial evidence supports the agency’s adverse
8 credibility determination. See Xiu Xia
Lin, 534 F.3d at 167.
9 That finding is dispositive of asylum, withholding of removal,
10 and CAT relief because all three claims are based on the same
11 factual predicate. See Paul v. Gonzales,
444 F.3d 148, 156-57
12 (2d Cir. 2006).
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, any stay of removal
15 that the Court previously granted in this petition is VACATED,
16 and any pending motion for a stay of removal in this petition
17 is DISMISSED as moot. Any pending request for oral argument in
18 this petition is DENIED in accordance with Federal Rule of
19 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
20 34.1(b).
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
6
