21-6611 Farhad v. Garland BIA Schoppert, IJ A202 075 498

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 5th day of March, two thousand twenty-four.

PRESENT: REENA RAGGI, JOSEPH F. BIANCO, BETH ROBINSON, Circuit Judges. _____________________________________

YEASIN FARHAD, Petitioner,

v. 21-6611 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Xiaotao Wang, Esq., Law Office of Xiaotao Wang, P.C., New York, NY. FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant Attorney General; Sabatino F. Leo, Assistant Director; Tatiana G. Pino, 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 Yeasin Farhad, a native and citizen of Bangladesh, seeks review

of a November 3, 2021 decision of the BIA, affirming a March 27, 2019 decision of

an Immigration Judge (“IJ”), which denied his application for asylum,

withholding of removal, and relief under the Convention Against Torture

(“CAT”). In re Yeasin Farhad, No. A202 075 498 (B.I.A. Nov. 3, 2021), aff’g No. A202

075 498 (Immigr. Ct. N.Y. City Mar. 27, 2019). We assume the parties’ familiarity

with the underlying facts and procedural history.

Under the circumstances, we have considered both the IJ’s and BIA’s

decisions. Wangchuck v. Dep’t of Homeland Sec., Immigr. & Customs Enf’t,

(2d Cir. 2006). We review an adverse credibility determination “under

the substantial evidence standard,” Hong Fei Gao v. Sessions,

(2d Cir.

2018), and “the administrative findings of fact are conclusive unless any 2 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 (whenever made and whether

or not under oath, and considering the circumstances under which the statements

were made), 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.”

(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,

.

The agency found Farhad not credible as to his claim that members of the

Bangladesh Awami League threatened and attacked him on account of his

membership in the Bangladesh Nationalist Party (“BNP”). Although Farhad

3 challenges the agency’s adverse credibility determination, which is dispositive of

all his claims, we conclude that his challenge is without merit. As set forth below,

the agency’s determination is supported by substantial evidence and is dispositive

of all forms of relief sought. See Hong Fei Gao,

(“Where the same

factual predicate underlies a petitioner’s claims for asylum, withholding of

removal, and protection under the CAT, an adverse credibility determination

forecloses all three forms of relief.”)

The agency reasonably found that Farhad’s demeanor gave the impression

that he was testifying from a memorized statement rather than from a recollection

of his experiences. See Li Hua Lin v. U.S. Dep’t of Justice,

(2d Cir.

2006) (recognizing that adverse credibility determination may be based in part on

a finding “that the applicant is testifying from a script rather than from

experience”). The agency also reasonably found that his testimony was

inconsistent with other record evidence regarding when he first participated in

political activities, whether he was subjected to false lawsuits, whether his father

was physically assaulted, and how many times he went to police. See

(b)(1)(B)(iii); These inconsistencies, which Farhad did not compellingly

explain, provide substantial evidence for the agency’s adverse credibility

4 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.”); 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)).

Moreover, the adverse credibility determination is bolstered by the lack of

reliable corroboration. See Biao Yang v. Gonzales,

(2d Cir. 2007)

(“An applicant’s failure to corroborate his or her 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.”).

Farhad’s submission of identical affidavits purportedly from various BNP officials

further undermined his credibility. See

(b)(1)(B)(iii); Mei Chai Ye v.

U.S. Dep’t of Just.,

(2d Cir. 2007) (recognizing that “this court . . .

has firmly embraced the commonsensical notion that striking similarities between

affidavits are an indication that the statements are ‘canned’”). And the IJ

reasonably afforded limited weight to these affidavits because, in addition to the

5 striking similarities among them and the inconsistencies with Farhad’s testimony,

the authors were not available for cross-examination. See Likai Gao,

.

Finally, contrary to Farhad’s contention, the agency did not improperly fail

to consider whether Farhad established a likelihood of future persecution based on

pattern-or-practice country conditions evidence independent of his testimony

regarding claims of past persecution. See Paul v. Gonzales,

(2d

Cir. 2006) (holding that an adverse credibility determination as to past persecution

does not foreclose a finding of a likelihood of future persecution “so long as the

factual predicate of the applicant’s claim of future persecution is independent of

the testimony that the IJ found not to be credible.” (emphases omitted)). As the

Government argues, Farhad did not exhaust this issue before the BIA, and his

argument to this Court rests on country conditions reports that were not in

evidence before the IJ. In the face of the Government’s timely objection, this

Court cannot excuse Farhad’s failure to exhaust and entertain arguments raised

for the first time in his petition for review and based on evidence not presented to

the agency.

(d)(1). See Santos-Zacaria v. Garland,

(2023) (holding that administrative exhaustion requirement in

1252(d)(1) is a non-jurisdictional claim-processing rule subject to forfeiture); Ud

Din v. Garland,

(2d Cir. 2023) (noting that § 1252(d)(1)’s exhaustion

requirement is mandatory claim-processing rule that “court must enforce . . . if a

party properly raises it” (quoting Fort Bend County v. Davis,

(2019))).

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

7