19-1480 Rahman v. Garland BIA Conroy, IJ A206 181 807 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 6th day of May, two thousand twenty-one. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 DENNIS JACOBS, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 FAYJUR RAHMAN, 14 Petitioner, 15 16 v. 19-1480 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Khagendra Gharti-Chhetry, Esq., 24 New York, NY. 25 26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 27 General; Kohsei Ugumori , Senior 28 Litigation Counsel; David Kim, 1 Trial Attorney, Office of 2 Immigration Litigation, United 3 States Department of Justice, 4 Washington, DC.

5 UPON DUE CONSIDERATION of this petition for review of a

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

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

8 is DENIED.

9 Petitioner Fayjur Rahman, a native and citizen of

10 Bangladesh, seeks review of a May 7, 2019, decision of the

11 BIA affirming a November 15, 2017, decision of an Immigration

12 Judge (“IJ”), denying asylum, withholding of removal, and

13 protection under the Convention Against Torture (“CAT”). In

14 re Fayjur Rahman, No. A 206 181 807 (B.I.A. May 7, 2019),

15 aff’g No. A 206 181 807 (Immig. Ct. N.Y. City Nov. 15, 2017).

16 We assume the parties’ familiarity with the underlying facts

17 and procedural history.

18 We have reviewed both the BIA’s and IJ’s decisions. See

19 Yun-Zui Guan v. Gonzales,

(2d Cir. 2005).

20 We review the agency’s adverse credibility determination for

21 substantial evidence. See

(b)(4)(B); Hong Fei

22 Gao v. Sessions,

(2d Cir. 2018). “Considering

23 the totality of the circumstances, and all relevant factors,

2 1 a trier of fact may base a credibility determination on the

2 demeanor, candor, or responsiveness of the applicant . . . ,

3 the consistency between the applicant’s . . . written and

4 oral statements . . . , the internal consistency of each such

5 statement, [and] the consistency of such statements with

6 other evidence of record . . . or any other relevant factor.”

7

(b)(1)(B)(iii). “We defer . . . to an IJ’s

8 credibility determination unless, from the totality of the

9 circumstances, it is plain that no reasonable fact-finder

10 could make such an adverse credibility ruling.” Xiu Xia Lin

11 v. Mukasey,

(2d Cir. 2008); accord Hong Fei

12 Gao,

. Substantial evidence supports the

13 agency’s adverse credibility determination.

14 Rahman alleged past persecution and a fear of future

15 persecution from members of the Awami League on account of

16 his support for a rival political party. The agency

17 reasonably concluded that he was not credible based on

18 differences between his written statement and testimony, his

19 evasiveness, and a lack of reliable corroboration. The

20 agency reasonably relied on Rahman’s failure to testify about

21 the alleged attacks on his parents even when pressed to

3 1 identify any additional reasons that he feared returning to

2 Bangladesh. See

(b)(1)(B)(iii). This

3 omission was material to his claim that Awami League members

4 continue to look for him and was therefore information that

5 “a credible petitioner would reasonably have been expected to

6 disclose.” Hong Fei Gao,

; see also Xian

7 Tuan Ye v. Dep’t of Homeland Sec.,

(2d Cir.

8 2006) (holding that “material inconsistency in an aspect of

9 [an applicant’s] story that served as an example of the very

10 persecution from which he sought asylum . . . afforded

11 substantial evidence to support the adverse credibility

12 finding.” (internal quotation marks and citation omitted)).

13 The agency was not required to credit Rahman’s explanations

14 that he could not or did not want to remember the events.

15 See Majidi v. Gonzales,

(2d Cir. 2005) (“A

16 petitioner must do more than offer a plausible explanation

17 for . . . inconsistent statements to secure relief; he must

18 demonstrate that a reasonable fact-finder would be compelled

19 to credit his testimony.” (internal quotations omitted)).

20 We defer to the agency’s conclusion that Rahman’s

21 demeanor undermined his credibility, and the record reflects

4 1 that Rahman was evasive and unresponsive when asked about a

2 letter written on his behalf by a leader of the Bangladesh

3 Nationalist Party. See

(b)(1)(B)(iii);

4 Majidi,

n.1 (recognizing that particular

5 deference is given to the trier of fact’s assessment of

6 demeanor).

7 Moreover, having questioned Rahman’s credibility, the

8 agency reasonably relied further on his failure to

9 rehabilitate his testimony with reliable corroborating

10 evidence. See Biao Yang v. Gonzales,

(2d

11 Cir. 2007) (“An applicant’s failure to corroborate his or her

12 testimony may bear on credibility, because the absence of

13 corroboration in general makes an applicant unable to

14 rehabilitate testimony that has already been called into

15 question.”). The party leader’s letter did not mention any

16 of the alleged incidents of persecution and the agency

17 reasonably declined to give weight to letters from Rahman’s

18 relatives and acquaintances in Bangladesh. See Y.C. v.

19 Holder,

(2d Cir. 2013) (deferring to

20 agency’s decision not to credit letter from applicant’s

21 spouse); see also In re H-L-H- & Z-Y-Z-,

,

5 1 215 (B.I.A. 2010) (finding that letters from applicant’s

2 friends and family were not substantial support for claims

3 because they were from interested witnesses not subject to

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

5 Huang v. Holder,

, 133–38 (2d Cir. 2012).

6 Given the material omissions, demeanor finding, and lack

7 of reliable corroboration, the adverse credibility

8 determination is supported by substantial evidence. See Xiu

9 Xia Lin, 534 F.3d at 165–66. That determination is

10 dispositive of asylum, withholding of removal, and CAT relief

11 because all three claims are based on the same factual

12 predicate. See Paul v. Gonzales,

, 156–57 (2d

13 Cir. 2006).

14 For the foregoing reasons, the petition for review is

15 DENIED. All pending motions and applications are DENIED and

16 stays VACATED.

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

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