17-293 Rashid v. Barr BIA Loprest, IJ A088 513 116

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 12th day of April, two thousand nineteen. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 REENA RAGGI, 9 RICHARD C. WESLEY, 10 Circuit Judges. 11 _____________________________________ 12 13 MAHFUZ RASHID, AKA MAHFUZUR 14 RASHID, 15 Petitioner, 16 17 v. 17-293 18 NAC 19 WILLIAM P. BARR 20 UNITED STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Amy Nussbaum Gell, Gell & Gell, 25 New York, NY. 26 27 FOR RESPONDENT: Chad A. Readler, Principal 28 Deputy Assistant Attorney 29 General; Claire L. Workman, 30 Senior Litigation Counsel; Juria 1 L. Jones, Trial Attorney, Office 2 of Immigration Litigation, 3 United States Department of 4 Justice, Washington, DC. 5 6 UPON DUE CONSIDERATION of this petition for review of a

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

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

9 is GRANTED.

10 Petitioner Mahfuz Rashid, a native and citizen of

11 Bangladesh, seeks review of a January 17, 2017, decision of

12 the BIA affirming a May 20, 2016, decision of an Immigration

13 Judge (“IJ”) denying Rashid’s application for asylum,

14 withholding of removal, and relief under the Convention

15 Against Torture (“CAT”). In re Mahfuz Rashid, No. A088 513

16 116 (B.I.A. Jan. 17, 2017), aff’g No. A088 513 116 (Immig.

17 Ct. N.Y. City May 20, 2016). We assume the parties’

18 familiarity with the underlying facts and procedural history

19 in this case.

20 Under the circumstances of this case, we have reviewed

21 the IJ’s decision as supplemented and modified by the BIA.

22 See Yan Chen v. Gonzales,

(2d Cir. 2005);

23 Xue Hong Yang v. U.S. Dep’t of Justice,

(2d

24 Cir. 2005); see also Yun-Zui Guan v. Gonzales,

,

25 394 (2d Cir. 2005). The applicable standards of review are

2 1 well established. See

(b)(4)(B); Xiu Xia Lin

2 v. Mukasey,

(2d Cir. 2008).

3 The governing REAL ID Act credibility standard provides

4 that the agency must “[c]onsider[] the totality of the

5 circumstances,” and may base a credibility finding on an

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

7 plausibility of his account, and inconsistencies in his or

8 his witness’s statements, “without regard to whether” they go

9 “to the heart of the applicant’s claim.” 8 U.S.C.

10 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin,

-

11 64, 166-67. “We defer . . . to an IJ’s credibility

12 determination unless . . . it is plain that no reasonable

13 fact-finder could make such an adverse credibility ruling.”

14 Xiu Xia Lin,

. As set forth below, one of the

15 agency’s two omission findings is erroneous, and we cannot

16 confidently predict that remand would be futile because the

17 only other basis for the adverse credibility determination—a

18 demeanor finding—contains errors.

19 I. Omissions

20 “[W]here . . . perceived incongruities in an asylum

21 applicant’s testimony are not plainly obvious, an IJ cannot

22 rely on them to support an adverse credibility ruling without

3 1 first identifying the alleged inconsistencies for the

2 applicant and giving the applicant an opportunity to address

3 them.” Ming Shi Xue v. BIA,

(2d Cir. 2006).

4 “[I]t is the IJ’s duty to make sure that the record we review

5 includes both the alien’s explanation for any non-‘dramatic’

6 discrepancies, on the one hand, and the IJ’s reasons for

7 rejecting ‘significant’ explanations, on the other.”

at

8 125. The concerns underlying this duty may be heightened

9 when omissions are involved.

at 125 n.17 (“[W]e should

10 bear in mind that the language barriers, often present in

11 asylum proceedings . . . may make applicants more reluctant

12 to volunteer information for which they were not asked.”). A

13 “contradiction is obvious . . . where the relevant

14 inconsistency is sufficiently conspicuous as to be evident,

15 and where it is central enough to the applicant’s claim that

16 it could not have been reasonably overlooked by the parties

17 or the IJ.”

. “[C]ontradictions . . . are not

18 obvious . . . where they are not premised on ‘dramatically

19 different’ accounts of the alleged persecution.”

.

20 We acknowledge that the agency reasonably found that

21 Rashid omitted threatening visits by Awami League (“AL”)

22 members to his home from his testimony, which he had cited in

4 1 his written application. See Xiu Xia Lin,

-

2 67 & n.3. Rashid stated in his application that AL members

3 showed up at his home to warn his family and to threaten him;

4 his father’s letter stated that AL members came to his home

5 and pushed and threatened him. But Rashid did not mention

6 these incidents during his testimony. Rashid’s argument

7 here—that there was no omission because he testified to

8 receiving threatening phone calls—does not resolve the

9 problem. Rashid was specifically asked if there was anything

10 other than telephonic threats after his attack, and he

11 responded that there was not, thereby contradicting his

12 application and his father’s letter.

13 Nonetheless, Rashid is correct that the agency erred in

14 finding that he omitted a 2007 altercation at a rally from

15 his testimony. Rashid stated in his application that the AL

16 caused a physical altercation at a Bangladesh Nationalist

17 Party (“BNP”) rally at a college in April 2007, but he escaped

18 unhurt. At the outset of his testimony, when asked what kind

19 of problems he personally experienced, Rashid stated he had

20 verbal conflicts and arguments with the AL due to his role as

21 a local BNP press secretary. He was then asked whether

22 anything went beyond arguments, and he described a September

5 1 2009 beating in which he was stabbed in the chest and then

2 hospitalized for 12 days. He was never given an opportunity

3 to testify in narrative form or asked to describe incidents

4 prior to the September 2009 attack in which he did not

5 experience physical harm. Moreover, even if this could be

6 considered an omission, the IJ erred by not asking Rashid to

7 explain the omission given that it did not result in

8 “dramatically different accounts” of the harm Rashid

9 suffered. Ming Shi Xue,

(internal quotation

10 marks omitted). And while Rashid had an opportunity to state

11 anything else he wanted to tell the IJ, that opportunity does

12 not discharge an IJ’s duty of confrontation when non-obvious

13 omissions are involved.

. Although the Government

14 is correct that Rashid did not argue to the BIA that the IJ

15 failed to confront him with this omission, he did challenge

16 the IJ’s reliance on the finding. Because we may consider

17 “specific, subsidiary legal argument[s]” not raised before

18 the BIA, we can consider Rashid’s argument. Gill v. INS, 420

(2d Cir. 2005). As we have explained, without

20 the requirement that IJs solicit explanations for non-obvious

21 discrepancies, “asylum applicants would frequently be denied

22 the opportunity to clarify genuinely consistent testimony

6 1 that the IJ has unwittingly misconstrued. And, conversely,

2 immigration judges could prematurely decide that testimony is

3 inconsistent when, in fact, the purported discrepancies

4 readily admit of explanations which the IJ would find valid.”

5 Ming Shi Xue,

. Further, the probative value

6 of this omission is diminished given that Rashid was not asked

7 to describe incidents prior to the September 2009 attack in

8 which he did not experience physical harm. See Hong Fei Gao

9 v. Sessions,

(2d Cir. 2018) (“[T]he probative

10 value of a witness’s . . . silence on particular facts

11 depends on whether those facts are ones the witness would

12 reasonably have been expected to disclose.”).

13 II. Remand Futility Analysis

14 Because one of the two omissions underlying the

15 credibility determination is erroneous, we must assess

16 whether remand would be futile. Lianping Li v. Lynch, 839

(2d Cir. 2016).

18 The overarching test to deem a remand futile is when 19 the reviewing court can confidently predict that the 20 agency would reach the same decision absent the 21 errors that were made. To determine whether remand 22 would be futile, a reviewing court should assess the 23 entire record and determine whether, based on the 24 strength of the evidence supporting the error-free 25 findings and the significance of those findings, it 26 is clear that the agency would adhere to its decision 27 were the petition remanded.

7 1 2

(internal quotation marks and citation omitted). As

3 discussed below, we cannot not deem remand futile because the

4 only other finding underlying the adverse credibility

5 determination—demeanor—contains errors, and the IJ’s apparent

6 failure to consider Rashid’s corroborating evidence when

7 assessing his credibility further erodes confidence in the

8 credibility determination.

9 A. Demeanor

10 Although we “give particular deference to credibility

11 determinations that are based on the adjudicator’s

12 observation of the applicant’s demeanor, . . . we grant lesser

13 deference to credibility determinations that are based on an

14 analysis of testimony . . . [and] will reverse where . . . [a]

15 determination is based upon speculation or upon an incorrect

16 analysis of the testimony.” Jin Chen v. U.S. Dep’t of

17 Justice,

(2d Cir. 2005) (internal quotation

18 marks and citations omitted). We cannot defer to two of the

19 bases for the demeanor finding: one is simply incorrect, and

20 the other is speculative.

21 First, the BIA affirmed the IJ’s negative demeanor

22 finding because the IJ observed numerous long pauses before

23 Rashid answered questions on cross-examination; however,

8 1 there were only three such pauses, and two occurred while

2 Rashid was questioned about a date discrepancy that the IJ

3 found to be a result of a translation error. The attorney

4 for the Department of Homeland Security (“DHS”) questioned

5 Rashid about minutes from a local BNP committee meeting

6 reflecting that he had been elected press secretary from 2014

7 to 2015, which post-dated his arrival in the United States.

8 However, after the translator confirmed that the original

9 document read 2004 to 2005, the IJ stated that he could not

10 find a discrepancy between the document and Rashid’s

11 testimony. The BIA thus erred in finding that Rashid’s pauses

12 while he was questioned about the inaccurately translated

13 dates reflected a lack of credibility.

14 Second, the demeanor finding is based on an analysis of

15 testimony, but is not grounded in the record. The IJ stated

16 that Rashid did not distinguish his role as press secretary

17 from the roles of other rank-and-file BNP members, but the IJ

18 never asked Rashid to distinguish these duties from those of

19 a rank-and-file BNP member. Cf. Ming Shi Xue,

125. Moreover, the IJ did not elaborate on the role of a

21 rank-and-file member of the BNP, and it is unclear what the

22 role of an ordinary member of that political party would be.

9 1 Rashid did testify that his role as local press secretary

2 included arranging meetings, hanging posters, recruiting, and

3 setting up microphones, which do not appear to be duties of

4 an ordinary member of a political party.

5 As for the IJ’s additional demeanor findings—that Rashid

6 was vague and nonresponsive when asked about his location

7 from August 2010 to January 2013 and why he returned from

8 Dhaka to Noakhali, and that he was evasive when asked about

9 the BNP’s affiliation with Islami Okiya Jote and Jammat-e-

10 Islami Bangladesh—Rashid’s hesitations, uncertainties, and

11 incompleteness in his answers, which the IJ cited as

12 supporting a finding of lack of credibility appear

13 attributable, at least in part, to the DHS attorney’s

14 confusing phrasing and compound questions.

15 B. Corroboration

16 “An applicant’s failure to corroborate his or her

17 testimony may bear on credibility, because the absence of

18 corroboration in general makes an applicant unable to

19 rehabilitate testimony that has already been called into

20 question.” Biao Yang v. Gonzales,

(2d Cir.

21 2007). Although the agency has an obligation to consider all

22 evidence relevant to an applicant’s claim, it need not

10 1 “expressly parse or refute on the record each individual

2 argument or piece of evidence offered by the petitioner.”

3 Wei Guang Wang v. BIA,

(2d Cir. 2006)

4 (internal quotation marks omitted). “[W]e presume that an IJ

5 has taken into account all of the evidence before him, unless

6 the record compellingly suggests otherwise.” Xiao Ji Chen v.

7 U.S. Dep’t of Justice,

, 336 n.17 (2d Cir. 2006).

8 The agency’s treatment of Rashid’s corroborating

9 evidence further erodes confidence in the credibility

10 determination. The IJ did not address the weight to be

11 accorded to Rashid’s individualized corroborating evidence,

12 which included hospitalization records reflecting surgical

13 repair of an incised wound of the chest consistent with his

14 allegation of a 2009 attack. Nor did the IJ’s alternative

15 reasons for denying relief—that Rashid did not sufficiently

16 establish harm rising to the level of persecution or that the

17 attackers were AL members—relieve the IJ of his obligation to

18 consider Rashid’s corroborating evidence in the context of

19 the credibility determination because the alternative

20 reasoning assumed Rashid’s credibility as to important parts

21 of his allegations. The BIA did not cure the problem because

22 it neither adopted the alternatives, nor considered whether

11 1 Rashid’s documentary evidence supported his credibility.

2 Given the substantiality of the errors and problems in

3 the agency’s reasoning noted above, we cannot conclude that

4 remand would be futile. The uncompromised adverse

5 credibility findings do not provide substantial support for

6 the adverse credibility determination. Lianping Li,

.

8 For the foregoing reasons, the petition for review is

9 GRANTED, the BIA’s decision is VACATED, and the case is

10 REMANDED for further proceedings. As we have completed our

11 review, any stay of removal that the Court previously granted

12 in this petition is VACATED, and any pending motion for a

13 stay of removal in this petition is DISMISSED as moot. Any

14 pending request for oral argument in this petition is DENIED

15 in accordance with Federal Rule of Appellate Procedure

16 34(a)(2), and Second Circuit Local Rule 34.1(b).

17 FOR THE COURT: 18 Catherine O’Hagan Wolfe, 19 Clerk of Court

12