18-2485 Islam v. Barr BIA Christensen, IJ A206 421 090 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 11th day of December, two thousand twenty.

PRESENT: JON O. NEWMAN, JOSÉ A. CABRANES, MICHAEL H. PARK, Circuit Judges. _____________________________________

SAIFUL ISLAM, Petitioner,

v. 18-2485 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Salim Sheikh, Esq., New York, NY.

FOR RESPONDENT: Ethan P. Davis, Acting Assistant Attorney General; Anthony C. Payne, Assistant Director; Joseph D. Hardy, 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 Saiful Islam, a native and citizen of

Bangladesh, seeks review of a July 25, 2018, decision of the

BIA affirming an August 9, 2017, decision of an Immigration

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

withholding of removal, and relief under the Convention

Against Torture (“CAT”). In re Saiful Islam, No. A 206 421

090 (B.I.A. July 25, 2018), aff’g No. A 206 421 090 (Immig.

Ct. N.Y. City Aug. 9, 2017). We assume the parties’

familiarity with the underlying facts and procedural history.

Under the circumstances of this case, we have reviewed

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

Gonzales,

(2d Cir. 2005). The applicable

standards of review are well established. See

(b)(4)(B); Hong Fei Gao v. Sessions,

(2d Cir. 2018) (reviewing adverse credibility determination

under a substantial evidence standard). “Considering the 2 totality of the circumstances, and all relevant factors, a

trier of fact may base a credibility determination on . . .

the consistency between 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, . . . or any other relevant factor.”

(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 Islam was

not credible as to his claim that he was persecuted in

Bangladesh by the Awami League (“AL”) on account of his

support for the Bangladesh Nationalist Party.

The agency reasonably relied on discrepancies between

Islam’s statements at his credible fear interview and his

subsequent testimony. As an initial matter, the interview

record bore sufficient “hallmarks of reliability” because the

interview was memorialized in a typewritten list of questions

3 and answers, Islam had an interpreter, his responses

indicated that he understood the questions, and the questions

included inquiries about past harm and fear of future harm as

needed to elicit an asylum claim. Ming Zhang v. Holder,

(2d Cir. 2009). The asylum officer also told

Islam at the start of the interview that his statements would

be kept confidential, and the interview record does not reveal

that Islam was reluctant to reveal information. Nor does it

appear that Islam had reason to be particularly wary of

government officials: he was never arrested in Bangladesh,

and he testified that he was ignored, not harassed, when he

tried to seek help from the police. See Ramsameachire v.

Ashcroft,

(2d Cir. 2004) (“[A]n interview

may be deemed less reliable if the alien appears to have been

reluctant to reveal information . . . because of prior

interrogation sessions or other coercive experiences in his

or her home country.”). Moreover, although Islam declined

to have his attorney present for the interview, he was

represented and his opportunity to speak with an attorney

before the interview lessens the likelihood that it was

coercive. See Yun-Zui Guan,

n.6 (“[A]n

4 alien’s mere recitation that he was nervous or felt pressured

during an airport interview will not automatically prevent

the IJ or BIA from relying [o]n statements in such interviews

when making adverse credibility determinations.”). Because

the record of the credible fear interview was reliable,

substantial evidence supports the agency’s determination that

Islam was not credible.

First, Islam’s testimony and statements at his credible

fear interview were inconsistent regarding the first time

that he was threatened by AL supporters. Although Islam

testified that he did not mention a 2012 incident at his

interview because he was afraid, the IJ was not required to

accept this explanation, particularly as it does not explain

why he identified other harm and stated that his first

interaction with the AL was a warning in 2013. 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 and citations

omitted)).

5 Second, Islam omitted from his credible fear interview

the most serious incident to which he testified, an alleged

August 2012 beating resulting in his hospitalization. The

IJ reasonably rejected Islam’s explanation that he was afraid

and thought immigration officials would think he was a bad

person because he disclosed another incident where he escaped

an attack. See

These “dramatically different” accounts

as to the timeline of events and whether Islam was ever

physically harmed provide substantial evidence for the

adverse credibility determination.

Third, as the IJ noted, Islam’s testimony and statements

at his credible fear interview were inconsistent regarding

the date he escaped a confrontation with AL members. Fourth,

Islam’s testimony and statements at his credible fear

interview were inconsistent regarding whether there was a

complaint filed against him with the police. The IJ was not

required to accept Islam’s explanation that he was not sure

if a complaint was filed because it did not explain why Islam

told the asylum officer that there was a false complaint.

See

Fifth, Islam’s testimony was inconsistent with his

father’s affidavit regarding whether he was alone when he was

6 threatened in February 2012. The IJ was not required to

credit Islam’s explanation that his father was in a rickshaw

close behind him given that Islam did not mention this fact

when asked if he was alone. See

Finally, the agency also reasonably concluded that Islam

failed to rehabilitate his credibility with reliable

corroborating evidence. See Biao Yang v. Gonzales,

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

corroborate his . . . 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.”). The IJ reasonably declined to

give weight to affidavits from Islam’s family and colleagues

that contained identical language and included language from

Islam’s asylum application. See Mei Chai Ye v. U.S. Dep’t

of Justice,

(2d Cir. 2007) (“embrac[ing]

the commonsensical notion that striking similarities between

affidavits are an indication that the statements are

‘canned’”); Singh v. BIA,

(2d Cir. 2006)

(upholding adverse credibility determination partly based on

significantly similar language in supporting affidavits).

7 Given the inconsistencies between the credible fear

interview and Islam’s testimony, Islam’s omission of the most

serious incident of harm at his interview, the inconsistency

between Islam’s and his father’s statements, and the

similarities among the affidavits, substantial evidence

supports the adverse credibility determination. See Xiu Xia

Lin,

; Singh,

. Because Islam’s

claims were all based on the same factual predicate, the

adverse credibility determination is dispositive of asylum,

withholding of removal, and CAT relief. 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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