18-852 Ashraf v. Barr BIA Christensen, IJ A206 573 964 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 23rd day of July, two thousand twenty.

PRESENT: JOHN M. WALKER, JR., DEBRA ANN LIVINGSTON, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________

BILAL ASHRAF, Petitioner,

v. 18-852 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Richard W. Chen, New York, NY.

FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Mary Jane Candaux, Assistant Director; Matthew A. Connelly, 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 Bilal Ashraf, a native and citizen of

Pakistan, seeks review of a March 1, 2018 decision of the BIA

affirming a May 2, 2017 decision of an Immigration Judge

(“IJ”) denying Ashraf’s application for asylum, withholding

of removal, and relief under the Convention Against Torture

(“CAT”). In re Ashraf, No. A 206 573 964 (B.I.A. Mar. 1,

2018), aff’g No. A 206 573 964 (Immig. Ct. N.Y. City May 2,

2017). We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

Because the BIA affirmed the IJ’s adverse credibility

ruling, we have reviewed both the BIA’s and IJ’s decisions.

See Yun-Zui Guan v. Gonzales,

(2d Cir.

2005). We review the agency’s findings of fact under the

substantial evidence standard. See

(b)(4);

Hong Fei Gao v. Sessions,

(2d Cir. 2018).

Under this standard, “[w]e treat factual findings as 2 ‘conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.’”

(quoting

(b)(4)(B)).

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

circumstances . . . base a credibility determination on the

demeanor, candor, or responsiveness of the applicant,” the

plausibility of his account, and inconsistencies in his

statements or between his statements and other evidence,

without regard to whether they go “to the heart of the

applicant’s claim.”

(b)(1)(B)(iii). We

“defer . . . to an IJ’s credibility determination unless . . .

it is plain that no reasonable fact-finder could make such an

adverse credibility ruling.” Xiu Xia Lin v. Mukasey,

(2d Cir. 2008); accord Hong Fei Gao,

. Substantial evidence supports the agency’s

determination that Ashraf was not credible.

First, the agency reasonably relied on internal

inconsistencies in Ashraf’s testimony concerning the details

of the three incidents in which he alleged that he was

attacked (in March, May, and June 2013). See

(b)(1)(B)(iii). For example, Ashraf testified that he

3 completed his final university exam prior to the March attack,

but, when confronted with records suggesting that the exams

were later, he testified that he took additional exams shortly

afterwards. This inconsistency implicated the timeline of

the attacks and the extent of his injuries following the first

attack.

Second, the agency reasonably relied on inconsistencies

and omissions in Ashraf’s medical records. See

(b)(1)(B)(iii); Hong Fei Gao,

(holding

that “an omission by a third party may form a basis for an

adverse credibility determination”). Ashraf testified that

he received treatment from Ghani Memorial Clinic after all

three attacks and that he received the most extensive

treatment, including a two-day clinic stay, following the May

attack. But the first letter he obtained from the clinic

mentioned only the March and June incidents. See

(“[T]he probative value of a witness’s . . . silence on

particular facts depends on whether those facts are ones the

witness would reasonably have been expected to disclose.”).

Although Ashraf obtained a second letter addressing the

omitted attack after the discrepancy was noted during his

4 asylum interview, the agency was not required to credit his

explanation that the clinic failed to thoroughly search its

records prior to completing the first letter. 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 quotation marks omitted)).

These letters also omitted the injuries Ashraf allegedly

sustained to his leg during the June attack. Ashraf

testified that he was beaten on the leg with a sharp metal

object on the end of a stick, and that these were the most

serious injuries he suffered from that alleged attack.

Ashraf argues that the clinic letter reported the resulting

leg bruises in asserting that he “presented with significant

bruising and some lacerations at his back & arms.” This is

a strained reading of the letter, which would be reasonably

expected to include the location of the most serious injuries

in addition to the location of less-serious injuries. See

Hong Fei Gao,

.

Third, the IJ questioned the authenticity of the Ghani

5 Memorial Clinic letters because the word “Memorial” was

spelled inconsistently on the letterhead. Ashraf argues that

it is not unusual to use stationery with printer errors. But

an IJ is entitled to “considerable flexibility in determining

the authenticity of . . . documents from the totality of the

evidence.” Shunfu Li v. Mukasey,

(2d Cir.

2008). Here, especially in light of the significant

omissions noted above as well as additional inconsistencies

regarding whether the May attack rendered Ashraf unconscious

and what leg was injured in the June attack, the totality of

the evidence supported the IJ’s evaluation of these records.

See

Finally, Ashraf argues that the agency failed to consider

or ascribe appropriate weight to his remaining corroborating

documents, and that the BIA decision improperly characterized

letters in the record as “unsworn.” Although the record

reflects that the letters from Muhammad Rasheed, Hina Bilal,

Qaiser Raza Chishti, and Tariq Gill were in fact “sworn,”

notarized, and subject to “the penalties of perjury,” the

agency did not rely on the “unsworn” character of these

letters in assigning weight; instead, it properly relied on

6 the unavailability of the authors for cross-examination, and

Ashraf’s wife’s interest in the outcome. See In re H-L-H- &

Z-Y-Z-,

(B.I.A. 2010) (finding that

letters from the applicant’s friends and family did not

provide substantial support for the applicant’s claims

because they were from interested witnesses not subject to

cross-examination), overruled on other grounds by Hui Lin

Huang v. Holder,

, 133–38 (2d Cir. 2012); see

also Y.C. v. Holder,

(2d Cir. 2013)

(deferring to agency’s decision to give little weight to

letter from applicant’s spouse in China). The remaining

documents do not rehabilitate Ashraf’s testimony, as they do

not corroborate the alleged instances of persecution or

explain the discrepancies elsewhere in the record. And the

IJ did not err in finding that this lack of reliable

corroboration further undermined Ashraf’s credibility. See

Biao Yang v. Gonzales,

(2d Cir. 2007)

(holding an asylum applicant’s failure to corroborate his

testimony may bear on his credibility “because the absence of

corroboration in general makes an applicant unable to

rehabilitate testimony that has already been called into

7 question”).

In sum, given the multiple inconsistencies and omissions

and the lack of reliable corroboration, the adverse

credibility determination is supported by substantial

evidence. See

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

534 F.3d at 165–67. That determination is dispositive of

asylum, withholding of removal, and CAT relief because all

three claims are based on the same factual predicate. See

Paul v. Gonzales,

, 156–57 (2d Cir. 2006).

For the foregoing reasons, the petition for review is

DENIED. All pending motions and applications are DENIED and

stays VACATED.

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

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