Karim v. Garland ( 2022 )

19-2362
Karim v. Garland
BIA
Wright, IJ
A206 476 009
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 for the Second
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 4th day of January, two thousand twenty-
4 two.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RICHARD J. SULLIVAN,
9 STEVEN J. MENASHI,
10 Circuit Judges.
11 _____________________________________
12
13 FAZLUL KARIM,
14 Petitioner,
15
16 v. 19-2362
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
1 FOR PETITIONER: Yoram Nachimovsky, Esq., New York, NY.
2
3 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General;
4 M. Jocelyn Lopez Wright, Senior Litigation
5 Counsel; Christopher Buchanan, Trial
6 Attorney, Office of Immigration Litigation,
7 United States Department of Justice,
8 Washington, DC.
9 UPON DUE CONSIDERATION of this petition for review of a Board of
10 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
11 DECREED that the petition for review is DENIED.
12 Petitioner Fazlul Karim, a native and citizen of Bangladesh, seeks review of
13 a July 2, 2019 decision of the BIA affirming a January 10, 2018 decision of an
14 Immigration Judge (“IJ”) denying asylum, withholding of removal, and relief
15 under the Convention Against Torture (“CAT”). In re Fazlul Karim, No. A206 476
16 009 (B.I.A. July 2, 2019), aff’g No. A206 476 009 (Immig. Ct. N.Y. City Jan. 10, 2018).
17 We assume the parties’ familiarity with the underlying facts and procedural
18 history.
19 We have reviewed both the BIA’s and the IJ’s decisions, including the
20 portions of the IJ’s decision not explicitly addressed by the BIA. See Yun-Zui Guan
21 v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). We review adverse credibility
22 determinations for substantial evidence, see Hong Fei Gao v. Sessions, 891 F.3d 67,
2
1 76 (2d Cir. 2018), and treat the agency’s findings of fact as “conclusive unless any
2 reasonable adjudicator would be compelled to conclude to the contrary,” 8 U.S.C.
3 § 1252(b)(4)(B). “The scope of review under the substantial evidence standard is
4 exceedingly narrow, and we will uphold the BIA’s decision unless the petitioner
5 demonstrates that the record evidence was so compelling that no reasonable
6 factfinder could fail to find him eligible for relief.” Singh v. Garland, 11 F.4th 106,
7 113 (2d Cir. 2021) (internal quotation marks omitted).
8 The agency denied relief on the basis of an adverse credibility finding.
9 “Considering the totality of the circumstances, and all relevant factors, a trier of
10 fact may base a credibility determination on the demeanor, candor, or
11 responsiveness of the applicant . . . , the inherent plausibility of the applicant’s . . .
12 account, the consistency between the applicant’s . . . written and oral
13 statements . . . , the internal consistency of each such statement, [and] the
14 consistency of such statements with other evidence of record . . . without regard to
15 whether an inconsistency, inaccuracy, or falsehood goes to the heart of the
16 applicant’s claim, or any other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii).
17 “We defer . . . to an IJ’s credibility determination unless . . . it is plain that no
18 reasonable fact-finder could make such an adverse credibility ruling.” Xiu Xia
3
1 Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d at 76.
2 Substantial evidence supports the adverse credibility determination.
3 The agency reasonably relied on Karim’s inconsistent accounts of alleged
4 past persecution at the hands of the Awami League (“AL”) due to his membership
5 in the Bangladesh Nationalist Party (“BNP”). Karim’s oral testimony during the
6 removal hearing did not match his written statements concerning several
7 incidents, including: whether AL members threatened him before or after
8 breaking items in his store in the first incident; whether they physically injured
9 him in the second incident and when that altercation occurred; and how he came
10 to be injured in the third incident. Taken together, these inconsistencies provide
11 substantial evidence for the adverse credibility determination. See Xian Tuan Ye
12 v. Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006) (holding that “material
13 inconsistency in an aspect of [the] story that served as an example of the very
14 persecution from which [Petitioner] sought asylum . . . afforded substantial
15 evidence to support the adverse credibility finding” (internal quotation marks
16 omitted)); see also 8 U.S.C. § 1158(b)(1)(B)(iii). Although Karim stated that he
17 forgot to mention the assault that occurred during the second incident in his
18 written statement, the agency was not required to accept Karim’s explanation
4
1 because the written statement affirmatively stated that he was not harmed. See
2 Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more than
3 offer a plausible explanation for his inconsistent statements to secure relief; he
4 must demonstrate that a reasonable fact-finder would be compelled to credit his
5 testimony.” (internal quotation marks omitted)).
6 The IJ’s demeanor finding further bolstered the adverse credibility
7 determination. Karim was vague and unresponsive when asked how many BNP
8 meetings he attended and how many members were in his union. CAR at 119−23.
9 And this Court affords “particular deference to [an IJ’s] credibility findings based
10 on demeanor.” Karaj v. Gonzales, 462 F.3d 113, 116 (2d Cir. 2006) (internal
11 citations omitted)).
12 The agency also reasonably relied on Karim’s failure to rehabilitate his
13 testimony with corroboration. See 8 U.S.C. § 1158(b)(1)(B)(ii) (“Where the trier of
14 fact determines that the applicant should provide evidence that corroborates
15 otherwise credible testimony, such evidence must be provided unless the
16 applicant does not have the evidence and cannot reasonably obtain the
17 evidence.”); Zou v. Garland, No. 19-2003, 2021 WL 4097775, at *1 (2d Cir. Sept. 9,
18 2021) (“Even absent an adverse credibility determination, a lack of corroboration
5
1 may be an independent basis for the denial of relief.”). Karim did not corroborate
2 that he was physically harmed by AL members. See Chuilu Liu v. Holder, 575 F.3d
3 193, 198 (2d Cir. 2009) (“[T]he alien bears the ultimate burden of introducing such
4 evidence without prompting from the IJ”). And we defer to the agency’s decision
5 not to give weight to letters from Karim’s family and friends, a non-
6 contemporaneous medical record, and an unauthenticated and expired license.
7 See Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) (“We generally defer to the
8 agency’s evaluation of the weight to be afforded an applicant’s documentary
9 evidence.”).
10 Finally, we reject Karim’s due process argument as the record does not
11 compellingly suggest the agency overlooked or ignored evidence. See Xiao Ji Chen
12 v. U.S.Dep’t of Justice, 471 F.3d 315, 336 n.17 (2d Cir. 2006) (“We presume that an IJ
13 has taken into account all of the evidence before him, unless the record
14 compellingly suggests otherwise.”); Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d
15 Cir. 2008) (“[W]e do not demand that the [agency] expressly parse or refute on the
16 record each individual argument or piece of evidence offered by the petitioner.”
17 (internal citations and quotation marks omitted)). Moreover, the letter from the
6
1 BNP and the country conditions evidence introduced by Karim do not resolve the
2 inconsistencies in Karim’s written and oral accounts of persecution.
3 Absent credible testimony or reliable corroboration, the agency did not err
4 in concluding that Karim could not meet his burden of proof. See 8 U.S.C.
5 § 1158(b)(1)(B)(ii). This determination is dispositive of asylum, withholding of
6 removal, and CAT relief because all three forms of relief are based on the same
7 discredited factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir.
8 2006).
9 For the foregoing reasons, the petition for review is DENIED. All pending
10 motions and applications are DENIED and stays VACATED.
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe,
13 Clerk of Court
7