Hossain v. Barr
Hossain v. Barr
Opinion
18-141 Hossain v. Barr BIA Ruehle, IJ A206 370 211 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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 21st day of November, two thousand nineteen. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 RAYMOND J. LOHIER, JR., 9 MICHAEL H. PARK, 10 Circuit Judges. 11 _____________________________________ 12 13 SHAHADAT HOSSAIN, 14 Petitioner, 15 16 v. 18-141 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Stephen K. Tills, Esq., Orchard 24 Park, NY. 25 26 FOR RESPONDENT: Joseph H. Hunt, Assistant 27 Attorney General; Andrew N. 28 O’Malley, Senior Litigation 29 Counsel; Sunah Lee, Trial 30 Attorney, Office of Immigration 31 Litigation, United States 32 Department of Justice, Washington, 33 DC. 1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Shahadat Hossain, a native and citizen of
6 Bangladesh, seeks review of a December 27, 2017, decision of
7 the BIA affirming an April 27, 2017, decision of an
8 Immigration Judge (“IJ”) denying his application for asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Hossain, No. A 206 370 211
11 (B.I.A. Dec. 27, 2017), aff’g No. A 206 370 211 (Immig. Ct.
12 Buffalo Apr. 27, 2017). We assume the parties’ familiarity
13 with the underlying facts and procedural history in this case.
14 As an initial matter, Hossain’s argument that the agency
15 lacked jurisdiction over his removal proceedings because his
16 notice to appear did not include a hearing date or time is
17 foreclosed by Banegas Gomez v. Barr,
922 F.3d 101(2d Cir.
18 2019).
Id.at 110–12.
19 Turning to the adverse credibility determination, we have
20 reviewed the IJ’s decision as modified by the BIA. See Xue
21 Hong Yang v. U.S. Dep’t of Justice,
426 F.3d 520, 522(2d
22 Cir. 2005). The applicable standards of review are well
2 1 established. See
8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.
2 Sessions,
891 F.3d 67, 76(2d Cir. 2018) (reviewing adverse
3 credibility determination under a substantial evidence
4 standard). “Considering the totality of the circumstances,
5 and all relevant factors, a trier of fact may base a
6 credibility determination on . . . the consistency between
7 the applicant’s or witness’s written and oral
8 statements . . ., the internal consistency of each such
9 statement, [and] the consistency of such statements with
10 other evidence of record.”
8 U.S.C. § 1158(b)(1)(B)(iii).
11 “We defer . . . to an IJ’s credibility determination
12 unless . . . it is plain that no reasonable fact-finder could
13 make such an adverse credibility ruling.” Xiu Xia Lin v.
14 Mukasey,
534 F.3d 162, 167(2d Cir. 2008) (per curiam); accord
15 Hong Fei Gao,
891 F.3d at 76. Substantial evidence supports
16 the agency’s determination that Hossain was not credible as
17 to his claim that Awami League members assaulted and
18 threatened to kill him on account of his membership in the
19 Bangladesh Nationalist Party.
20 The agency reasonably relied on inconsistencies between
21 Hossain’s testimony and his documentary evidence. Hossain
22 repeatedly testified that Awami League members assaulted him
3 1 at 8:00 p.m. as he returned from a religious holiday gathering
2 in August 2013. He testified that he sustained serious
3 injuries and was taken to a hospital, from which he was
4 discharged without records, and then to another hospital
5 where he remained for two days, receiving documentation of
6 his injuries the day of discharge. He submitted what he
7 claimed were original records of his treatment.
8 However, at his hearing, when confronted with his own
9 submission of records from the first hospital stating he was
10 admitted at 6:00 p.m., two hours before the alleged assault,
11 Hossain had no explanation other than that the record should
12 have reflected an admission at 9:00 p.m. He also was unable
13 to provide a clear explanation as to why another date more
14 than a year after treatment appeared on these records.
15 Hossain later testified that the document reflected the date
16 it was notarized, before the doctor signed the records. See
17 Majidi v. Gonzales,
430 F.3d 77, 80(2d Cir. 2005) (“A
18 petitioner must do more than offer a plausible explanation
19 for his inconsistent statements to secure relief; he must
20 demonstrate that a reasonable fact-finder would be compelled
21 to credit his testimony.” (internal quotation marks
22 omitted)). To the extent that he first stated that he had
4 1 no records from this hospital, his lack of familiarity with
2 his own evidence further undermined his credibility.
3 Given that these inconsistencies relate directly to the
4 sole incident of past harm and undermine the reliability of
5 the records, the totality of the circumstances supports the
6 agency’s adverse credibility determination. See 8 U.S.C.
7 § 1158(b)(1)(B)(iii); Xian Tuan Ye v. Dep’t of Homeland Sec.,
8
446 F.3d 289, 295(2d Cir. 2006) (per curiam) (holding that
9 material inconsistency regarding basis of applicant’s asylum
10 claim is substantial evidence for adverse credibility
11 determination). That determination is dispositive of asylum,
12 withholding of removal, and CAT relief because all three
13 claims are based on the same factual predicate. See Paul v.
14 Gonzales,
444 F.3d 148, 156-57(2d Cir. 2006).
15 For the foregoing reasons, the petition for review is
16 DENIED. All pending motions and applications are DENIED and
17 stays VACATED.
18 FOR THE COURT: 19 Catherine O’Hagan Wolfe, 20 Clerk of Court
5
Reference
- Status
- Unpublished