21-6280 Hossain v. Garland BIA Segal, IJ A206 498 957

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 7th day of May, two thousand twenty- four.

PRESENT: PIERRE N. LEVAL, RICHARD J. SULLIVAN, MICHAEL H. PARK, Circuit Judges. _____________________________________

AMIR HOSSAIN, Petitioner,

v. 21-6280 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: Usman B. Ahmad, Long Island City, NY.

FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant Attorney General; Justin R. Markel, Senior Litigation Counsel; Brooke M. Maurer, 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 Amir Hossain, a native and citizen of Bangladesh, seeks review

of an April 12, 2021, decision of the BIA summarily affirming an August 28, 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 Amir Hossain, No. A206 498 957 (B.I.A. Apr. 12, 2021), aff’g No.

A206 498 957 (Immig. Ct. N.Y. City Aug. 28, 2018). Hossain argues that the IJ

erred in finding that he was not credible in connection with his claims of past

persecution and fear of future persecution at the hands of a rival political party.

We assume the parties’ familiarity with the underlying facts and procedural

history.

2 As a threshold matter, we lack jurisdiction to review Hossain’s challenge to

the BIA’s decision to summarily affirm the IJ’s decision and to not issue a three-

member opinion. See Kambolli v. Gonzales,

, 461–63 (2d Cir. 2006). It

is well settled that “summary affirmance of IJ decisions by a single Board member

does not deprive an asylum applicant of due process.” Yu Sheng Zhang v. U.S.

Dep’t of Just.,

(2d Cir. 2004); see also

(e)(6) (setting

out circumstances required for three-member decision). Because the BIA

summarily affirmed without opinion, we review the IJ’s decision as the final

agency determination. See Shunfu Li v. Mukasey,

(2d Cir. 2008).

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 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 . . . , the inherent plausibility of the

applicant’s . . . account, the consistency between the applicant’s . . . written and

oral statements (whenever made and whether or not under oath, and considering

3 the circumstances under which the statements were made), the internal

consistency of each such statement, . . . and any inaccuracies or falsehoods in such

statements, 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,

. Hossain alleged that he was

attacked multiple times by political rivals because of his membership in the

Bangladesh Nationalist Party. Substantial evidence supports the IJ’s adverse

credibility determination.

As an initial matter, the IJ did not err in relying on the record of Hossain’s

credible fear interview. A credible fear interview warrants “close examination”

because it may “be perceived as coercive” by the alien or fail to “elicit all of the

details supporting an asylum claim.” Ming Zhang v. Holder,

, 724–25

(2d Cir. 2009). Nevertheless, “[w]here the record of a credible fear interview

displays the hallmarks of reliability, it appropriately can be considered in

assessing an alien’s credibility.”

. “Hallmarks of reliability” include

4 whether the interview is memorialized in a typewritten record of questions and

answers, whether the record demonstrates that the applicant understood the

questions and reflects questions about past harm or fear of future harm, and

whether the interview was conducted with an interpreter.

The IJ correctly

observed that those hallmarks of reliability were present here. A Bengali

interpreter was used (and Hossain listed Bengali on his asylum application as his

native language); the interviewer asked Hossain questions designed to elicit an

asylum claim; the questions and answers were memorialized in a typewritten

document; and at no point did Hossain object to the interpreter or demonstrate

difficulty understanding the interviewer’s questions.

The IJ reasonably relied on inconsistencies in Hossain’s statements at

various stages of the proceedings. See

(b)(1)(B)(iii). First, Hossain

testified inconsistently about how he injured his leg, initially claiming he was run

over by a car and later stating that he was hit by a Molotov cocktail. Hossain

sought to explain this inconsistency by stating that he had avoided disclosing the

Molotov cocktail attack because he was told it would be perceived as violent.

However, the IJ was not required to accept Hossain’s explanation that he had

feared disclosing the Molotov cocktail attack; Hossain had alluded to a Molotov

5 cocktail in his credible fear interview and included a later Molotov cocktail attack

in his application. 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 omitted)).

Second, the IJ reasonably relied on Hossain’s inconsistent statements about

how many times he was physically attacked. See

(b)(1)(B)(iii). At

his credible fear interview, Hossain stated that he was physically hurt “three to

four times,” and he went on to describe three physical attacks in the interview and

on his asylum application. However, Hossain testified at his hearing that he was

attacked only twice.

Third, Hossain testified that he was assaulted with hockey sticks in April

2013, but he wrote on his asylum application that this attack took place in July

2013. The IJ reasonably relied on this minor inconsistency about the attacks in

combination with the other inconsistencies. See Xiu Xia Lin,

(“Even where an IJ relies on discrepancies or lacunae that, if taken separately,

concern matters collateral or ancillary to the claim, the cumulative effect may

nevertheless be deemed consequential by the fact-finder.” (alterations and internal

6 quotation marks omitted)).

In sum, substantial evidence supports the adverse credibility determination

given the multiple inconsistencies among Hossain’s written and oral statements.

See

(b)(1)(B)(iii); Xiu Xia Lin,

; see also 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.”). The adverse

credibility determination is dispositive of asylum, withholding of removal, and

CAT relief because all three forms of relief were based on the same factual

predicate. 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.”).

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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