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Hoque v. Barr, 18-1303 (2020)

Court: Court of Appeals for the Second Circuit Number: 18-1303 Visitors: 6
Filed: Aug. 13, 2020
Latest Update: Aug. 13, 2020
Summary: 18-1303 Hoque v. Barr BIA Schoppert, IJ A208 173 466 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 NO
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     18-1303
     Hoque v. Barr
                                                                           BIA
                                                                    Schoppert, IJ
                                                                   A208 173 466
                          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
 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 13th day of August, two thousand twenty.
 5
 6   PRESENT:
 7            DEBRA ANN LIVINGSTON,
 8            RAYMOND J. LOHIER, JR.,
 9            STEVEN J. MENASHI,
10                 Circuit Judges.
11   _____________________________________
12
13   MOJAMMAL HOQUE,
14            Petitioner,
15
16                   v.                                  18-1303
17                                                       NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                 Jaspreet Singh, Jackson Heights,
24                                   NY.
25
26   FOR RESPONDENT:                 Joseph H. Hunt, Assistant Attorney
27                                   General; M. Jocelyn Lopez Wright,
28                                   Senior Litigation Counsel; Anthony
29                                   J. Messuri, Trial Attorney, Office
 1                                    of Immigration Litigation, United
 2                                    States Department of Justice,
 3                                    Washington, DC.

 4         UPON DUE CONSIDERATION of this petition for review of a

 5   Board of Immigration Appeals (“BIA”) decision, it is hereby

 6   ORDERED, ADJUDGED, AND DECREED that the petition for review

 7   is DENIED.

 8         Petitioner    Mojammal     Hoque,   a   native   and   citizen    of

9    Bangladesh, seeks review of an April 3, 2018 decision of the

10   BIA affirming a July 13, 2017 decision of an Immigration Judge

11   (“IJ”) denying his application for asylum, withholding of

12   removal, and relief under the Convention Against Torture

13   (“CAT”).     In re Mojammal Hoque, No. A 208 173 466 (B.I.A. Apr.

14   3, 2018), aff’g No. A 208 173 466 (Immig. Ct. N.Y.C. July 13,

15   2017).       We   assume   the    parties’     familiarity     with    the

16   underlying facts and procedural history.

17         Under the circumstances of this case, we have reviewed

18   both the BIA’s and IJ’s decisions.              See Yun-Zui Guan v.

19   Gonzales, 
432 F.3d 391
, 394 (2d Cir. 2005).              The standards

20   of    review      are   well     established.          See   8    U.S.C.

21   § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 
891 F.3d 67
, 76

22   (2d   Cir.     2018).      “Considering       the   totality     of    the

23   circumstances, and all relevant factors, a trier of fact may

                                         2
 1   base a credibility determination on the . . . consistency

 2   between the applicant’s . . . written and oral statements . .

 3   . , the internal consistency of each such statement, the

 4   consistency of such statements with other evidence of record

 5   . . . without regard to whether an inconsistency, inaccuracy,

 6   or falsehood goes to the heart of the applicant’s claim, or

 7   any other relevant factor.”          8 U.S.C. § 1158(b)(1)(B)(iii).

 8   “We defer . . . to an IJ’s credibility determination unless,

9    from the totality of the circumstances, it is plain that no

10   reasonable fact-finder could make such an adverse credibility

11   ruling.”   Xiu Xia Lin v. Mukasey, 
534 F.3d 162
, 167 (2d Cir.

12   2008); accord Hong Fei 
Gao, 891 F.3d at 76
.               We conclude that

13   the adverse credibility determination here is supported by

14   substantial     evidence,     including         Hoque’s     contradictory

15   statements about whether he was ever harmed in Bangladesh,

16   inconsistencies regarding the date of the alleged harm, and

17   a lack of reliable corroborating evidence.

18        As an initial matter, the agency did not err in relying

19   on   Hoque’s   statement    during       his   credible    fear   interview

20   because the record of this interview bore sufficient indicia

21   of reliability so as to warrant evidentiary weight.                See Ming

22   Zhang v. Holder, 
585 F.3d 715
, 725 (2d Cir. 2009).                      An

                                          3
 1   interpreter    was     present,      the    record   reflects     questions

 2   designed to elicit details of Hoque’s asylum claim, and there

 3   is no indication that Hoque had difficulty communicating.                 At

 4   his credible fear interview, Hoque described threats from

 5   Awami League members, but claimed he had never been physically

 6   harmed. In contrast, in his asylum application and during his

 7   testimony, Hoque claimed that Awami League members dragged

 8   him, handcuffed, to the police station, where police officers

 9   then beat him and detained him for six hours.                   The agency

10   reasonably    relied    on    this    inconsistency      between   Hoque’s

11   interview    where     he    said    he    was   never   harmed    and   his

12   application and testimony, which alleged these beatings and

13   a brief detention.      See 8 U.S.C. § 1158(b)(1)(B)(iii).

14       Hoque also provided inconsistent dates for this incident.

15   Between his written application and testimony, he provided

16   several different dates and timelines for his alleged attack,

17   corresponding to two separate elections in Bangladesh.                   The

18   agency was not required to accept his explanation for these

19   discrepancies—that      his    high       cholesterol,   his    high   blood

20   pressure, and his journey to the United States caused memory

21   loss—because rather than explaining that he could not recall,

22   he gave various specific dates in his statements.                 Moreover,

                                           4
 1   he did not provide any evidence of actual memory loss, or how

 2   his medical conditions affected his memory.                See Majidi v.

 3   Gonzales, 
430 F.3d 77
, 80 (2d Cir. 2005) (“A petitioner must

 4   do   more    than     offer   a    plausible     explanation      for   his

 5   inconsistent statements to secure relief; he must demonstrate

 6   that a reasonable fact-finder would be compelled to credit

 7   his testimony.” (internal quotation marks omitted)).

 8        The    agency    also    reasonably    determined     that    Hoque’s

 9   documentary evidence did not rehabilitate his credibility

10   which had already been called into question.               See Biao Yang

11   v. Gonzales, 
496 F.3d 268
, 273 (2d Cir. 2007) (“An applicant’s

12   failure to corroborate his or her testimony may bear on

13   credibility, because the absence of corroboration in general

14   makes an applicant unable to rehabilitate testimony that has

15   already been called into question.”).                 The agency acted

16   within     its   discretion   in   giving   Hoque’s    evidence     little

17   weight,     because     it    consisted     of   letters    written      by

18   individuals who were unavailable to testify.                See Y.C. v.

19   Holder, 
741 F.3d 324
, 332 (2d Cir. 2013) (“We defer to the

20   agency’s determination of the weight afforded to an alien’s

21   documentary evidence.”); Matter of H-L-H- & Z-Y-Z-, 25 I. &

22   N. Dec. 209, 215 (B.I.A. 2010), rev’d on other grounds by Hui

                                          5
 1   Lin   Huang   v.    Holder,   
677 F.3d 130
  (2d   Cir.   2012).

 2   Furthermore, the letter from the Bangladesh Nationalist Party

 3   president of Hoque’s district did not corroborate Hoque’s

 4   claim because it did not discuss any threats or harm to Hoque

 5   by rival party members or the police.

 6         Considering that the inconsistencies related directly to

 7   the sole incident of past harm and Hoque did not submit

 8   reliable corroboration to rehabilitate his testimony, the

9    totality of the circumstances supports the agency’s adverse

10   credibility        determination.                 See      8      U.S.C.

11   § 1158(b)(1)(B)(iii); Likai Gao v. Barr, No. 18-358, 
2020 WL 12
  4290009, at *4 n.8 (2d Cir. July 28, 2020) (“[E]ven a single

13   inconsistency might preclude an alien from showing that an IJ

14   was compelled to find him credible. Multiple inconsistencies

15   would so preclude even more forcefully.”); Xian Tuan Ye v.

16   Dep’t of Homeland Sec., 
446 F.3d 289
, 295 (2d Cir. 2006)

17   (holding   that    material   inconsistency       regarding    basis   of

18   applicant’s asylum claim is substantial evidence for adverse

19   credibility       determination).          That      determination     is

20   dispositive of asylum, withholding of removal, and CAT relief

21   because all three claims are based on the same factual

22   predicate.    See Paul v. Gonzales, 
444 F.3d 148
, 156-57 (2d

                                         6
1   Cir. 2006).

2       For the foregoing reasons, the petition for review is

3   DENIED.   All pending motions and applications are DENIED and

4   stays VACATED.

5                               FOR THE COURT:
6                               Catherine O’Hagan Wolfe,
7                               Clerk of Court




                                  7

Source:  CourtListener

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