20-1015 Hossain v. Garland BIA Kolbe, IJ A206 911 460

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 30th day of March, two thousand twenty-two. 5 6 PRESENT: 7 JOSEPH F. BIANCO, 8 WILLIAM J. NARDINI, 9 STEVEN J. MENASHI, 10 Circuit Judges. 11 _____________________________________ 12 13 FARUQ HOSSAIN, AKA FARUG 14 HOSSAIN, 15 Petitioner, 16 17 v. 20-1015 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Ben Baumgartner, Baumgartner Law 25 Office, New York, NY. 26 27 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 28 Assistant Attorney General; 1 Bernard A. Joseph, Senior 2 Litigation Counsel; Erik R. Quick, 3 Trial Attorney, Office of 4 Immigration Litigation, United 5 States Department of Justice, 6 Washington, DC. 7 8 UPON DUE CONSIDERATION of this petition for review of a

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

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

11 is DENIED.

12 Petitioner Faruq Hossain, a native and citizen of

13 Bangladesh, seeks review of a February 24, 2020 decision of

14 the BIA affirming an April 2, 2018 decision of an Immigration

15 Judge (“IJ”), which denied Hossain’s application for asylum,

16 withholding of removal, and relief under the Convention

17 Against Torture (“CAT”). In re Faruq Hossain, No. A206 911

18 460 (B.I.A. Feb. 24, 2020), aff’g No. A206 911 460 (Immigr.

19 Ct. N.Y.C. Apr. 2, 2018). We assume the parties’ familiarity

20 with the underlying facts and procedural history.

21 Under the circumstances, we have considered both the IJ’s

22 and the BIA’s opinions. See Wangchuck v. Dep’t of Homeland

23 Sec.,

(2d Cir. 2006). We review the

24 agency’s adverse credibility determination for substantial

25 evidence. See

(b)(4)(B) (“[T]he

26 administrative findings of fact are conclusive unless any

2 1 reasonable adjudicator would be compelled to conclude to the

2 contrary.”). “The scope of review under the substantial

3 evidence standard is exceedingly narrow, and we will uphold

4 the BIA's decision unless the petitioner demonstrates that

5 the record evidence was so compelling that no reasonable

6 factfinder could fail to find him eligible for relief.”

7 Singh v. Garland,

(2d Cir. 2021) (internal

8 quotation marks omitted).

9 “Considering the totality of the circumstances, and all

10 relevant factors, a trier of fact may base a credibility

11 determination on the demeanor, candor, or responsiveness of

12 the applicant or witness, the inherent plausibility of the

13 applicant’s or witness’s account, [and] the consistency

14 between the applicant’s or witness’s written and oral

15 statements . . . without regard to whether an inconsistency,

16 inaccuracy, or falsehood goes to the heart of the applicant’s

17 claim, or any other relevant factor.” 8 U.S.C.

18 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility

19 determination unless, from the totality of the circumstances,

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

21 adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534

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

3 1

(2d Cir. 2018).

2 Substantial evidence supports the agency’s determination

3 that Hossain was not credible as to his claim that members of

4 the Awami League attacked him twice on account of his

5 membership in the Bangladesh National Party (“BNP”). The

6 agency reasonably found Hossain’s testimony nonresponsive

7 when he was asked about the medical evidence he submitted.

8 See

(b)(1)(B)(iii); Majidi v. Gonzales, 430

, 81 n.1 (2d Cir. 2005) (recognizing that we give

10 particular deference to the trier of fact’s assessment of a

11 witness’s demeanor). That finding is supported by the

12 record, which shows that Hossain stopped responding to

13 questions at one point when asked about his corroborating

14 evidence. See Jin Chen v. U.S. Dep’t of Just.,

,

15 113 (2d Cir. 2005) (holding that an “IJ’s ability to observe

16 . . . demeanor places [the IJ] in the best position to

17 evaluate whether apparent problems in the . . . testimony

18 suggest a lack of credibility or, rather, can be attributed

19 to an innocent cause such as difficulty understanding the

20 question”).

21 The IJ’s demeanor finding, and the adverse credibility

22 determination as a whole, are further supported by Hossain’s

4 1 implausible testimony regarding the second attack. See

2

(b)(1)(B)(iii); cf. Li Hua Lin v. U.S. Dep’t

3 of Just.,

(2d Cir. 2006) (“We can be still

4 more confident in our review of observations about an

5 applicant’s demeanor where, as here, they are supported by

6 specific examples of inconsistent testimony.”). Hossain

7 testified that he was on his way home at the end of a rally

8 of 400 to 500 BNP members and that he had walked only 50 to

9 100 feet from the rally site before he was attacked. He

10 claimed to have been the only attendee attacked. As the IJ

11 concluded, this story was implausible and thus supported the

12 adverse credibility determination. See 8 U.S.C.

13 § 1158(b)(1)(B)(iii); Siewe v. Gonzales,

, 168–

14 69 (2d Cir. 2007) (recognizing that an adverse credibility

15 determination may be based on inherent implausibility if the

16 finding “is tethered to the evidentiary record” or “record

17 facts . . . viewed in the light of common sense and ordinary

18 experience”).

19 Hossain was provided an opportunity to explain his

20 implausible testimony but gave inconsistent explanations,

21 first stating that he had work to complete after the rally,

22 then, when asked why he was the only one with work to

5 1 complete, changing his testimony to say he was attacked after

2 stopping at an adjacent market. See 8 U.S.C.

3 § 1158(b)(1)(B)(iii); Majidi, 430 F.3d at 80 (“A petitioner

4 must do more than offer a plausible explanation for his

5 inconsistent statements to secure relief; he must demonstrate

6 that a reasonable fact-finder would be compelled to credit

7 his testimony.” (internal quotation marks omitted)).

8 Given the demeanor and implausibility findings, the

9 agency’s adverse credibility determination is supported by

10 substantial evidence. See

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

11 see also Xiu Xia Lin, 534 F.3d at 167. That determination

12 was dispositive of asylum, withholding of removal, and CAT

13 relief because all three claims were based on the same factual

14 predicate. See Paul v. Gonzales,

, 156–57 (2d

15 Cir. 2006) (concluding that, “[b]ecause th[e] same factual

16 assertion was needed for either the asylum or the withholding

17 claim, the [adverse] credibility ruling necessarily

18 foreclosed relief in both”). Accordingly, we do not reach

19 the agency’s alternative determination that Hossain failed to

20 adequately corroborate his claim. See INS v. Bagamasbad, 429

(1976) (“As a general rule courts and agencies

22 are not required to make findings on issues the decision of

6 1 which is unnecessary to the results they reach.”).

2 For the foregoing reasons, the petition for review is

3 DENIED. All pending motions and applications are DENIED and

4 stays VACATED.

5 FOR THE COURT: 6 Catherine O’Hagan Wolfe, 7 Clerk of Court

7