17-378 Ahmed v. Whitaker BIA Poczter, IJ A200 237 468

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 25th day of January, two thousand nineteen.

PRESENT: ROBERT A. KATZMANN, Chief Judge, JON O. NEWMAN, GUIDO CALABRESI, Circuit Judges. _____________________________________

FAEZ AHMED, Petitioner,

v. 17-378 NAC MATTHEW G. WHITAKER, ACTING UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Salim Sheikh, New York, NY.

FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Melissa Neiman- Kelting, Assistant Director; Jacob A. Bashyrov, Trial Attorney, 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 Faez Ahmed, a native and citizen of

Bangladesh, seeks review of a January 9, 2017 decision of the

BIA affirming a February 29, 2016 decision of an Immigration

Judge (“IJ”) denying Ahmed’s applications for asylum,

withholding of removal, and relief under the Convention

Against Torture (“CAT”). In re Faez Ahmed, No. A 200 237 468

(B.I.A. Jan. 9, 2017), aff’g No. A 200 237 468 (Immig. Ct.

N.Y. City Feb. 29, 2016). We assume the parties’ familiarity

with the underlying facts, the procedural history of the case,

and the issues under review.

Under the circumstances of Ahmed’s petition, we have

considered both the IJ’s and the BIA’s opinions “for the sake

of completeness.” Wangchuck v. Dep’t of Homeland Security,

(2d Cir. 2006). The applicable standards of

review are well established. See

(b)(4)(B);

Xiu Xia Lin v. Mukasey,

(2d Cir. 2008).

First, we conclude that the agency reasonably relied on

the record from Ahmed’s credible fear interview. Although,

2 “adverse credibility determinations based on ‘discrepancies’

with a credible fear interview should be examined with care,”

Ming Zhang v. Holder,

(2d Cir. 2009) (citing

Ramsameachire v. Ashcroft,

(2d Cir.

2004)), “[w]here the record of a credible fear interview

displays the hallmarks of reliability, it appropriately can

be considered in assessing an alien’s credibility,”

The agency here reasonably found that the record from

Ahmed’s interview displayed such hallmarks. For example, the

interview was conducted with an interpreter that Ahmed did

not object to, Ahmed affirmatively declined to have an

attorney present, a paralegal from Ahmed’s attorney’s office

monitored the hearing, the interview was memorialized in a

typed document in question and answer format, the questions

posed were designed to elicit details of Ahmed’s asylum claim,

and Ahmed’s responses indicated that he understood the

questions. See Ming Zhang,

. We also note

that Ahmed’s counsel did not object to the immigration judge’s

reliance on the interview record. Certified Admin. Rec. at

133 (“I don’t have any objection”).

Accordingly, we conclude, second, that substantial

evidence supports the agency’s determination that Ahmed was

3 not credible as to his claim that the Awami League attacked

him six times for his work with the Bangladesh Nationalist

Party (“BNP”). The agency reasonably found that Ahmed’s

statements at his credible fear interview were inconsistent

with his testimony regarding when the Awami League first beat

him and what happened during an alleged October 2010 attack.

See

(b)(1)(B)(iii). Ahmed did not compellingly

explain these inconsistencies. See 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 compelled to credit his testimony.” (internal

quotations omitted)).

The agency also reasonably relied on Ahmed’s internally

inconsistent testimony about a foot injury he claims he

sustained during an alleged April 2010 attack. On direct

examination, Ahmed said he was cut on his right foot but then

changed his answer to his left foot. On cross-examination,

Ahmed first said that his left foot was cut, but then said

that his right foot was cut. And, while Ahmed’s original

written statement listed a cut to his left foot, he later

revised it to reflect a cut to his right foot. See 8 U.S.C.

4 § 1158(b)(1)(B)(iii); Xiu Xia Lin,

; see

also 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 . . .

And where an IJ’s finding of fabrication (supported by

substantial evidence) serves as a basis for discrediting

other evidence, a reviewing court is in no position to

conclude that the discrediting of the remaining evidence is

unsupported by substantial evidence.”).

Third, we conclude that the agency reasonably determined

that Ahmed failed to rehabilitate his testimony with reliable

corroborating evidence. See Biao Yang v. Gonzales,

(2d Cir. 2007) (“An applicant’s failure to

corroborate his or her testimony may bear on credibility,

because the absence of corroboration in general makes an

applicant unable to rehabilitate testimony that has already

been called into question.”). Among other things, the agency

did not err in declining to afford significant weight to

various written statements Ahmed submitted because the

authors were not available for cross-examination. See

(b)(1)(B)(iii); Y.C. v. Holder,

,

5 334 (2d Cir. 2013) (deferring to agency’s decision to afford

little weight to relative’s letter because it was unsworn and

from an interested witness).

Finally, given Ahmed’s inconsistent statements and lack

of reliable corroboration, the agency correctly concluded

that its adverse credibility determination was dispositive of

Ahmed’s asylum, withholding of removal, and CAT relief

applications because all three were based on the same factual

predicate. See Paul v. Gonzales,

(2d

Cir. 2006).

For the foregoing reasons, Ahmed’s petition for review

is DENIED. As we have completed our review, the pending motion

for a stay of removal in this petition is DISMISSED as moot.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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