16-3841 Alam v. Sessions BIA Christensen, IJ A201 293 607

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.

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 18th day of June, two thousand eighteen.

PRESENT: RAPLH K. WINTER, GUIDO CALABRESI, RAYMOND J. LOHIER, JR., Circuit Judges. _____________________________________

MASUD ALAM, AKA ALAM MASUD, Petitioner,

v. 16-3841 NAC JEFFERSON B. SESSIONS, III, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: David J. Rodkin, New York, NY.

FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Shelley R. Goad, Assistant Director; Russell J.E. Verby, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, DC. 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 Masud Alam, a native and citizen of

Bangladesh, seeks review of an October 20, 2016, decision

of the BIA affirming a February 25, 2016, decision of an

Immigration Judge (“IJ”) denying Alam’s application for

asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). In re Masud Alam, No.

A201 293 607 (B.I.A. Oct. 20, 2016), aff’g No. A 201 293 607

(Immig. Ct. N.Y. City Feb. 25, 2016). We assume the

parties’ familiarity with the underlying facts and

procedural history in this case.

Under the circumstances of this case, we have reviewed

both the BIA’s and IJ’s decisions. Yun-Zui Guan v. Gonzales,

(2d Cir. 2005). The standards of review

are well established. See

(b)(4); Xiu Xia Lin

v. Mukasey,

(2d Cir. 2008)(per curiam).

The agency may, “[c]onsidering the totality of the

circumstances,” base a credibility finding on an asylum

applicant’s “demeanor, candor, or responsiveness,” the

plausibility of his account, and “the consistency between 2 the applicant’s or witness’s written and oral statements .

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

consistency of such statements with other evidence of

record . . . , and any inaccuracies or falsehoods in such

statements, without regard to whether an inconsistency,

inaccuracy, or falsehood goes to the heart of the

applicant’s claim.”

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

Lin,

. Substantial evidence supports the

agency’s determination that Alam was not credible.

First, the agency reasonably relied on an inconsistency

between Alam’s testimony and his grandfather’s affidavit

about how long he was in hiding after the 2006 attack,

particularly as Alam’s continuously shifting testimony

prevented any resolution of the inconsistency. See Xiu Xia

Lin,

; Xian Tuan Ye v. Dep’t of Homeland

Sec.,

(2d Cir. 2006) (per curiam). The

IJ reasonably rejected Alam’s explanation that he was

confused because the government’s attorney repeatedly

confirmed that Alam understood the line of questioning.

Majidi v. Gonzales,

(2d Cir. 2005) (“A

petitioner must do more than offer a plausible explanation

for his inconsistent statements to secure relief; he must

demonstrate that a reasonable fact-finder would be 3 compelled to credit his testimony.” (quotation marks and

citation omitted)).

The agency also reasonably relied on Alam’s and his

wife’s erroneous statements about how many children they had.

Even though Alam eventually amended his application to

reflect all four of his children, the agency reasonably relied

on the original error. As the IJ explained, Alam’s wife’s

repetition of an error in the application called into question

whether she authored the statement. And the seeming

fabrication of evidence undermined Alam’s credibility as a

whole. Siewe v. Gonzales,

(2d Cir. 2007)

(“[A] single false document or a single instance of false

testimony may (if attributable to the petitioner) infect the

balance of the alien's uncorroborated or unauthenticated

evidence.”).

Finally, the agency reasonably relied on the

inconsistency between Alam’s statement at his credible fear

interview that he was never arrested and his application,

which reported that he was arrested and tortured by the

police in 2009.

(b)(1)(B)(iii). The agency

reasonably relied on the interview because Alam had access

to a Bengali interpreter, and although not a verbatim

transcript, the record is typewritten and memorialized in a 4 question and answer format, and there is no indication that

Alam misunderstood any questions or that the record does

not reflect his actual responses. Ming Zhang v. Holder,

(2d Cir. 2009). The agency was not

required to credit Alam’s explanation that he thought the

officer meant arrest by immigration authorities in the

United States, particularly given that the bulk of the

questions were about his experiences in Bangladesh.

Majidi,

.

Alam’s additional challenges to these findings fail.

The agency may rely “on any inconsistency,” Xiu Xia Lin,

, and his inconsistencies are substantial as they

either call into question specific incidents of alleged harm

or impugn the validity of Alam’s documentary evidence. Xian

Tuan Ye,

; Siewe,

. Nor does

Alam’s diagnosis of post-traumatic stress disorder excuse the

inconsistencies, particularly as it does not resolve the

problem with his wife’s letter. Majidi,

.

Contrary to Alam’s position, the IJ did not apply an incorrect

legal standard when addressing Alam’s explanations, the IJ

simply cited the controlling law in connection with his

conclusion that the explanations were unpersuasive.

5 Given the substantial inconsistencies discussed above,

the totality of the circumstances supports the adverse

credibility determination. Xiu Xia Lin,

.

Because Alam’s claims were all based on the same factual

predicate, the adverse credibility determination is

dispositive of asylum, withholding of removal, and CAT

relief. Paul v. Gonzales,

(2d Cir.

2006).

For the foregoing reasons, the petition for review is

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

that the Court previously granted in this petition is VACATED,

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

is DISMISSED as moot. Any pending request for oral argument

in this petition is DENIED in accordance with Federal Rule of

Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34.1(b).

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

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