Huda v. Garland ( 2022 )

20-529
Huda v. Garland
BIA
Lurye, IJ
A200 815 893
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 3rd day of March, two thousand twenty-two.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 PIERRE N. LEVAL,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 NAJ MUL HUDA,
14 Petitioner,
15
16 v. 20-529
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Mahfuzur Rahman, Esq., Elmhurst,
24 NY.
25
26 FOR RESPONDENT: Jeffrey Bossert Clark, Acting
27 Assistant Attorney General;
28 Daniel E. Goldman, Senior
1 Litigation Counsel; Robbin K.
2 Blaya, Trial Attorney, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington, DC.
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner, Naj Mul Huda, a native and citizen of
11 Bangladesh, seeks review of a January 15, 2020, decision of
12 the BIA affirming a May 7, 2018, decision of an Immigration
13 Judge (“IJ”) denying Huda’s application for asylum,
14 withholding of removal, and relief under the Convention
15 Against Torture (“CAT”). In re Naj Mul Huda, No. A200 815
16 893 (B.I.A. Jan. 15, 2020), aff’g No. A200 815 893 (Immig.
17 Ct. N.Y. City May 7, 2018). We assume the parties’
18 familiarity with the underlying facts and procedural history.
19 We have reviewed the IJ’s decision including the portions
20 not explicitly discussed by the BIA. See Yun-Zui Guan v.
21 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). We review the
22 dispositive adverse credibility determination for substantial
23 evidence. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.
24 Sessions, 891 F.3d 67, 76 (2d Cir. 2018).
2
1 “Considering the totality of the circumstances, and all
2 relevant factors, a trier of fact may base a credibility
3 determination on . . . the consistency between the applicant’s
4 or witness’s written and oral statements . . . , the internal
5 consistency of each such statement, [and] the consistency of
6 such statements with other evidence of record.” 8 U.S.C.
7 § 1158(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, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei
12 Gao, 891 F.3d at 76. Substantial evidence supports the
13 adverse credibility determination.
14 The agency reasonably relied on inconsistencies between
15 Huda’s hearing testimony and credible fear interview. See 8
16 U.S.C. § 1158(b)(1)(B)(iii). As an initial matter, the
17 record reflects that the interview record was sufficiently
18 reliable because the interviewer’s questions were designed to
19 elicit the details of Huda’s claim, the interviewer asked
20 follow-up questions and asked Huda if there was additional
21 information that he wanted to provide, and there was no
3
1 indication that Huda was reluctant to reveal information or
2 that he was confused by the interpreter’s translations. See
3 Ming Zhang v. Holder, 585 F.3d 715, 723–25 (2d Cir. 2009).
4 The agency was not required to credit Huda’s explanations
5 that the interviewer mis-transcribed his answers and that the
6 Bengali interpreter misinterpreted his statements. Indeed,
7 the IJ put Huda on notice of the contents of the credible
8 fear interview nearly two years before he testified, yet Huda
9 declined to object when the IJ admitted the interview into
10 evidence; and he challenged the interpreter’s translation
11 of his interview answers only when confronted with them during
12 cross-examination. A comparison of the interview with Huda’s
13 later statements reflects substantial inconsistency. Huda
14 testified in detail regarding two attacks and a kidnapping he
15 suffered, none of which he mentioned during the credible fear
16 interview. See Hong Fei Gao, 891 F.3d at 78 (cautioning that
17 omissions from preliminary statements are not as probative as
18 “inconsistencies created by direct contradictions,” but that
19 omission would be probative where “facts are ones the witness
20 would reasonably have been expected to disclose”) (internal
21 quotation marks omitted). These omissions lent considerable
4
1 support to the adverse credibility determination because they
2 concerned “the very persecution from which he sought asylum.”
3 Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d
4 Cir. 2006) (internal quotation marks omitted); see also Likai
5 Gao v. Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven a
6 single inconsistency might preclude an alien from showing
7 that an IJ was compelled to find him credible. Multiple
8 inconsistencies would so preclude even more forcefully.”).
9 The agency also properly relied on internal inconsistencies
10 within Huda’s hearing testimony because he first testified
11 that he and other supporters of the Bangladeshi National Party
12 (“BNP”) were attacked by supporters of the rival Awami League,
13 but later stated that he did not remember who hit him. See
14 8 U.S.C. § 1158(b)(1)(B)(iii) (credibility finding may be
15 based on “the internal consistency” of an applicant’s
16 statement).
17 The agency also reasonably concluded that Huda’s
18 corroborating evidence did not rehabilitate his lack of
19 credibility. An alien’s “failure to corroborate
20 his . . . testimony may bear on credibility, because the
21 absence of corroboration in general makes an applicant unable
5
1 to rehabilitate testimony that has already been called into
2 question.” Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.
3 2007). “We defer to the agency’s determination of the weight
4 afforded to an alien’s documentary evidence.” Y.C. v.
5 Holder, 741 F.3d 324, 334 (2d Cir. 2013). The agency was
6 not required to credit affidavits from Huda’s family,
7 friends, and BNP allies because the authors were not available
8 for cross-examination and some of them were interested
9 witnesses. See id. (deferring to agency decision to afford
10 little weight to petitioner's husband's letter because it was
11 unsworn and from an interested witness); see also In re H-L-
12 H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (finding
13 letters from friends and family insufficient to support
14 alien's claims because the authors were interested witnesses
15 not subject to cross-examination), overruled on other grounds
16 by Hui Lin Huang, 677 F.3d at 133-38. And Huda’s medical
17 evidence, some of which was vague and some of which
18 contradicted his hearing testimony, did not resolve the
19 inconsistencies in his statements. See Biao Yang, 496 F.3d
20 at 273; see also Y.C., 741 F.3d at 334.
21
6
1 Given the multiple inconsistencies, substantial evidence
2 supports the adverse credibility determination. See 8 U.S.C.
3 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. This
4 adverse credibility determination is dispositive of asylum,
5 withholding of removal, and CAT relief because all three
6 claims arose from the same factual predicate. See Paul v.
7 Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).
8 For the foregoing reasons, the petition for review is
9 DENIED. All pending motions and applications are DENIED and
10 stays VACATED.
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe,
13 Clerk of Court
7