21-6245 Hossain v. Garland BIA Poczter, IJ A209 431 765

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 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 28th day of December, two thousand twenty-three.

PRESENT: JON O. NEWMAN, JOSEPH F. BIANCO, EUNICE C. LEE, Circuit Judges. _____________________________________

MDALAMGIR MOHAMMED HOSSAIN, Petitioner,

v. 21-6245 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: Khagendra Gharti-Chhetry, Esq. New York, NY.

FOR RESPONDENT: Brian M. Boynton, Acting Assistant Attorney General; Carl McIntyre, Assistant Director; Nancy E. Friedman, Senior Litigation Counsel, 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 Mdalamgir Mohammed Hossain, a native and citizen of

Bangladesh, seeks review of a March 29, 2021 decision of the BIA affirming an

August 10, 2018 decision of an Immigration Judge (“IJ”) denying his application

for asylum, withholding of removal, and relief under the Convention Against

Torture (“CAT”). In re Mdalamgir Mohammed Hossain, No. A 209 431 765 (B.I.A.

Mar. 29, 2021), aff’g No. A 209 431 765 (Immigr. Ct. N.Y.C. Aug. 10, 2018). We

assume the parties’ familiarity with the underlying facts and procedural history.

We have reviewed the IJ’s decision as the final agency determination. See

Shunfu Li v. Mukasey,

(2d Cir. 2008). We review adverse

credibility determinations “under the substantial evidence standard,” Hong Fei

2 Gao v. Sessions,

(2d Cir. 2018), and “the administrative findings of

fact are conclusive unless any reasonable adjudicator would be compelled to

conclude to the contrary,”

(b)(4)(B).

“Considering the totality of the circumstances, and all relevant factors, a

trier of fact may base a credibility determination on the demeanor, candor, or

responsiveness of the applicant or witness . . . , the consistency between the

applicant’s or witness’s written and oral statements . . . , the internal consistency

of each such statement, [and] the consistency of such statements with other

evidence of record . . . without regard to whether an inconsistency, inaccuracy, or

falsehood goes to the heart of the applicant’s claim, or any other relevant factor.”

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

from the totality of the circumstances, 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 IJ’s determination that Hossain was not credible as to his claim that

he and his family were repeatedly assaulted by members of the Awami League

because of his support for the rival Liberal Democratic Party (“LDP”).

3 First, the IJ reasonably relied on inconsistencies in Hossain’s testimony

about whether he had been harmed, and feared harm, by the police. See

(b)(1)(B)(iii). Although Hossain did not mention police abuses in his

affidavit or on direct examination, a letter from the LDP asserted that Hossain was

on a list of people targeted for police harassment and at risk of arrest or

extrajudicial killing. When asked whether he had been harmed or feared harm

by the police, Hossain’s testimony was confusing and largely nonresponsive, and

he testified inconsistently that the police harmed him at the direction of the Awami

League, and that only the Awami League cadres harmed him.

Second, the IJ reasonably relied on inconsistencies regarding whether

Hossain’s mother was present during a February 2018 incident when, after he left

the country, members of the Awami League allegedly went to his home. See

Hossain wrote in his affidavit that the Awami League harmed his mother during

this incident, but his wife wrote in her affidavit that his mother was not present.

When asked about this inconsistency, Hossain first contradicted his own affidavit

by saying that his mother was not present, then testified that she was present, and

then testified that she was next door and came to the scene when she heard

screaming. The IJ was not required to find that this third account reconciled

4 Hossain’s two previous accounts. See Majidi v. Gonzales,

(2d Cir.

2018) (“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.” (quotation marks

omitted)).

Third, the IJ reasonably relied on Hossain’s demeanor, noting that he

frequently paused and that his testimony was vague and nonresponsive. See

(b)(1)(B)(iii). We generally defer to such findings because a “fact-

finder who assesses testimony together with witness demeanor is in the best

position to discern . . . whether a witness who hesitated in a response was

nevertheless attempting truthfully to recount what he recalled of key events or

struggling to remember the lines of a carefully crafted ‘script.’” Majidi,

n.1 (quoting Zhou Yun Zhang v. INS,

(2d Cir. 2004)); see also

Chen v. U.S. Dep’t of Just.,

(2d Cir. 2005) (explaining the Court

“give[s] particular deference” to IJ’s findings regarding demeanor because the IJ

is “in the best position to evaluate whether apparent problems in the witness’s

testimony suggest a lack of credibility or, rather, can be attributed to an innocent

cause such as difficulty understanding the question”). Moreover, the record

5 supports the findings. During the hearing, the IJ noted more than a dozen long

pauses in Hossain’s testimony after a question was posed. And, for example, as

noted above, Hossain’s testimony about whether he was harmed by the police

contained confusing, vague, and nonresponsive answers to questioning.

Finally, the IJ’s findings regarding omissions in an affidavit from Hossain’s

wife provide some further support for the IJ’s credibility determination, although

one of those findings is relatively weak. See

(b)(1)(B)(iii). “[A]n

omission by a third party may form a basis for an adverse credibility

determination.” Hong Fei Gao,

. However, such an omission may

be “less probative” where it “creates no inconsistency with an applicant’s own

statements.”

“[I]n assessing the probative value of the omission of certain

facts, an IJ should consider whether those facts are ones that a credible petitioner

[or witness] would reasonably have been expected to disclose under the relevant

circumstances.”

at 78–79.

Applying that standard, the omission from Hossain’s wife’s affidavit of

information about visiting a pharmacy and the police after the first assault—and

Hossain’s failure to explain those omissions—are not strong grounds for

questioning Hossain’s credibility. His wife’s affidavit addressed this assault in a

6 single sentence that did not foreclose the possibility of visits to the pharmacy and

police. Moreover, the omitted events are less important to Hossain’s claim than

the fact of his assault and injury, and Hossain did not allege that his wife was

present for these events. Under similar circumstances, we have concluded that

omissions of information about medical treatment from a letter written by an

applicant’s relative did not provide strong support for an adverse credibility

determination. 1

at 79–81.

However, the IJ also identified two omissions from Hossain’s wife’s

affidavit that support the adverse credibility determination. Hossain’s wife

wrote that her mother-in-law was verbally abused during a June 2017 incident;

however, if—as Hossain claimed—his mother was also physically abused, his wife

would be expected to disclose that more serious harm.

at 78–79. The IJ

likewise reasonably relied on Hossain’s wife’s failure to mention that her mother-

in-law was harmed in describing the February 2018 because that omission created

1 Even if consideration of the minor omissions was error, remand is not required “when . . . reliance on the erroneous aspect of [the IJ’s] reasoning is substantially tangential to . . . non-erroneous findings.” Gurung v. Barr,

(2d Cir. 2019) (quotation marks omitted). That is the case here. The IJ specified that she placed the most weight on inconsistencies related to whether the police harmed Hossain, and, as discussed above, the IJ also considered Hossain’s demeanor and responsiveness, as well as stronger omissions. 7 an inconsistency: Hossain’s affidavit states that Awami League cadres abused his

mother and wife, while his wife’s affidavit indicates that her mother-in-law was

not present.

.

These multiple inconsistencies and omissions related to the basis of

Hossain’s claim, along with the IJ’s demeanor finding, provide substantial

evidence for the IJ’s adverse credibility determination. See Likai Gao v. Barr,

, 145 n.8 (2d Cir. 2020) (“[E]ven a single inconsistency might preclude an

alien from showing that an IJ was compelled to find him credible. Multiple

inconsistencies would so preclude even more forcefully.”); Xiu Xia Lin,

; Majidi,

n.1. The adverse credibility determination was

dispositive because Hossain’s application for asylum, withholding of removal,

and CAT relief all relied 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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