16-4215 Hossain v. Sessions BIA Poczter, IJ A206 263 723 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 23rd day of April, two thousand eighteen. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 DEBRA ANN LIVINGSTON, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 MD ARIF HOSSAIN, 14 Petitioner, 15 16 v. 16-4215 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Md Arif Hossain, Pro Se, 24 Brooklyn, NY. 25 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; Terri J. 28 Scadron, Assistant Director; 29 Lisa Morinelli, Trial Attorney, 1 Office of Immigration Litigation, 2 United States Department of 3 Justice, Washington, DC. 4 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 DENIED.

9 Petitioner Md Arif Hossain, a native and citizen of

10 Bangladesh, seeks review of a November 25, 2016, decision of

11 the BIA affirming a March 10, 2016, decision of an Immigration

12 Judge (“IJ”) denying Hossain’s application for asylum,

13 withholding of removal, and relief under the Convention

14 Against Torture (“CAT”). In re Md Arif Hossain, No.

15 A 206 263 723 (B.I.A. Nov. 25, 2016), aff’g No. A 206 263 723

16 (Immig. Ct. N.Y. City Mar. 10, 2016). We assume the parties’

17 familiarity with the underlying facts and procedural history

18 in this case.

19 We have reviewed both the IJ’s and BIA’s decisions. Yun-

20 Zui Guan v. Gonzales,

(2d Cir. 2005). The

21 applicable standards of review are well established. See

22

(b)(4)(B); Xiu Xia Lin v. Mukasey,

(2d Cir. 2008) (reviewing adverse credibility 2 1 determination for substantial evidence).

2 “Considering the totality of the circumstances,” the

3 agency may base a credibility finding on the applicant’s

4 “demeanor, candor, or responsiveness,” and inconsistencies or

5 omissions in the applicant’s statements or between his

6 statements and other evidence. 8 U.S.C.

7 § 1158(b)(1)(B)(iii); Xiu Xia Lin,

, 166-

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

9 unless, from the totality of the circumstances, it is plain

10 that no reasonable fact-finder could make such an adverse

11 credibility ruling.” Xiu Xia Lin,

. As

12 discussed below, substantial evidence supports the adverse

13 credibility determination.

14 The agency reasonably relied on multiple inconsistencies

15 in Hossain’s testimony relating to his involvement with the

16 Bangladesh Nationalist Party (“BNP”) and his descriptions of

17 his past harm. See

(b)(1)(B)(iii). For

18 example, Hossain was unable to identify the name of the BNP’s

19 president despite submitting a letter from that individual in

20 support of his claim. And both that letter and his father’s

21 letter were inconsistent with Hossain’s testimony regarding 3 1 the timeline of his involvement in the BNP. The IJ was not

2 required to accept Hossain’s explanation regarding the

3 president’s letter—that he meant the time when he had a good

4 working relationship with the president—because it did not

5 explain the different dates or why Hossain did not recognize

6 the president’s name. See Majidi v. Gonzales,

,

7 80 (2d Cir. 2005) (“A petitioner must do more than offer a

8 plausible explanation for his inconsistent statements to

9 secure relief; he must demonstrate that a reasonable fact-

10 finder would be compelled to credit his testimony.” (emphasis

11 in original; quotation marks omitted)).

12 In addition, there were several inconsistencies between

13 Hossain’s testimony and the documentary evidence regarding

14 the two assaults Hossain allegedly suffered at the hands of

15 members of the Awami League. The inconsistencies related to

16 the location of the 2009 assault, the severity of Hossain’s

17 injuries, who reported the 2009 incident to authorities, and

18 where Hossain recovered from the 2012 assault. These

19 inconsistencies alone provide substantial evidence for the

20 adverse credibility determination because they relate to the

21 two main incidents of persecution. See Xian Tuan Ye v. Dep’t 4 1 of Homeland Sec.,

(2d Cir. 2006).

2 The adverse credibility determination is bolstered by

3 the IJ’s finding that Hossain paused numerous times when asked

4 to explain inconsistencies. “We give particular deference

5 to” a finding based on demeanor, particularly when such a

6 finding “is supported by specific examples of inconsistent

7 testimony.” Li Hua Lin v. U.S Dep’t of Justice,

,

8 109 (2d Cir. 2006) (internal quotation marks and brackets

9 omitted). Finally, the IJ reasonably found that Hossain

10 failed to rehabilitate his testimony with reliable

11 corroborating evidence. See Biao Yang v. Gonzales,

268, 273 (2d Cir. 2007) (“An applicant’s failure to corroborate

13 . . . testimony may bear on credibility, because the absence

14 of corroboration in general makes an applicant unable to

15 rehabilitate testimony that has already been called into

16 question.”). The IJ reasonably found that Hossain’s evidence

17 was insufficient to rehabilitate his testimony because, in

18 addition to the inconsistencies between the documents and

19 Hossain’s statements, the documents were prepared for the

20 purpose of litigation by parties not subject to cross

21 examination, they relied solely on Hossain’s testimony for 5 1 authentication, and at least one of the drafters, Hossain’s

2 father, was an interested party. See Y.C. v. Holder, 741

(2d Cir. 2013) (holding that “[w]e defer

4 to the agency’s determination of the weight afforded to an

5 alien’s documentary evidence” and deferring to decision to

6 give limited weight to an unsworn letter from applicant’s

7 spouse).

8 Given the multiple inconsistencies, the demeanor

9 finding, and the lack of reliable corroboration, substantial

10 evidence supports the adverse credibility determination. See

11

(b)(1)(B)(iii); Xiu Xia Lin,

-

12 66. The adverse credibility determination is dispositive of

13 asylum, withholding of removal, and CAT relief because all

14 three claims rely on the same factual predicate. See Paul

15 v. Gonzales,

(2d Cir. 2006).

16 For the foregoing reasons, the petition for review is

17 DENIED. As we have completed our review, any stay of removal

18 that the Court previously granted in this petition is VACATED,

19 and any pending motion for a stay of removal in this petition

20 is DISMISSED as moot. Any pending request for oral argument

21 in this petition is DENIED in accordance with Federal Rule of 6 1 Appellate Procedure 34(a)(2), and Second Circuit Local Rule

2 34.1(b).

3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk of Court

7