Abid v. Barr ( 2020 )

18-520
Abid v. Barr
BIA
Christensen, IJ
A206 228 816
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 28th day of December, two thousand twenty.
5
6 PRESENT:
7 DEBRA ANN LIVINGSTON,
8 Chief Judge,
9 PIERRE N. LEVAL,
10 STEVEN J. MENASHI,
11 Circuit Judges.
12 _____________________________________
13
14 MUHAMMAD NOMAN ABID,
15 Petitioner,
16
17 v. 18-520
18 NAC
19 WILLIAM P. BARR,
20 UNITED STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Anas J. Ahmed, Esq., New York, NY.
25
26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
27 General; Carl McIntyre, Assistant
28 Director; Virginia Lum, Trial
1 Attorney, Office of Immigration
2 Litigation, United States
3 Department of Justice, Washington,
4 DC.
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Muhammad Noman Abid, a native and citizen of
10 Pakistan, seeks review of a January 24, 2018, decision of the
11 BIA affirming a November 9, 2016, decision of an Immigration
12 Judge (“IJ”) denying Abid’s application for asylum,
13 withholding of removal, and relief under the Convention
14 Against Torture (“CAT”). In re Muhammad Noman Abid, No. A
15 206 228 816 (B.I.A. Jan. 24, 2018), aff’g No. A 206 228 816
16 (Immig. Ct. N.Y. City Nov. 9, 2016). We assume the parties’
17 familiarity with the underlying facts and procedural history.
18 We have reviewed both the IJ’s and the BIA’s decisions
19 “for the sake of completeness.” Wangchuck v. Dep’t of
20 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The
21 applicable standards of review are well established. See 8
22 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d
23 67, 76 (2d Cir. 2018) (reviewing adverse credibility
24 determination for substantial evidence).
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 demeanor, candor, or responsiveness of
4 the applicant . . . , the consistency between the applicant’s
5 . . . written and oral statements . . . , the internal
6 consistency of each such statement, [and] the consistency of
7 such statements with other evidence of record . . . without
8 regard to whether an inconsistency, inaccuracy, or falsehood
9 goes to the heart of the applicant’s claim, or any other
10 relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer
11 . . . to an IJ’s credibility determination unless, from the
12 totality of the circumstances, it is plain that no reasonable
13 fact-finder could make such an adverse credibility ruling.”
14 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008);
15 accord Hong Fei Gao, 891 F.3d at 76.
16 “[A]dverse credibility determinations based on
17 ‘discrepancies’ with a credible fear interview should be
18 examined with care.” Ming Zhang v. Holder, 585 F.3d 715, 725
19 (2d Cir. 2009) (citing Ramsameachire v. Ashcroft, 357 F.3d
20 169, 180-81 (2d Cir. 2004)). But “[w]here the record of a
21 credible fear interview displays the hallmarks of
22 reliability, it appropriately can be considered in assessing
3
1 an alien’s credibility.” Id. “Hallmarks of reliability”
2 include whether the interview is a typewritten list of
3 questions and answers, whether it demonstrates that the
4 applicant understood the questions and reflects questions
5 about past harm or fear of future harm, and whether it was
6 conducted with an interpreter. Id.7 The agency properly relied on Abid’s credible fear
8 interview because the interview record was reliable. See
9 8 U.S.C. § 1158(b)(1)(B)(iii). The “hallmarks of
10 reliability” listed in Ming Zhang are present here: the
11 interview was conducted with an interpreter in a language
12 Abid said he understood; Abid had retained counsel but
13 declined to have his attorney present; it is memorialized in
14 a question-and-answer format; the questions posed were
15 designed to elicit details of an asylum claim; and Abid’s
16 responses indicated that he understood the questions. 585
17 F.3d at 725. Further, Abid’s counsel did not object when the
18 IJ admitted the interview record into evidence.
19 Because the record of the credible fear interview was
20 reliable, substantial evidence supports the agency’s
21 determination that Abid was not credible as to his claim of
22 political persecution. See Xiu Xia Lin, 534 F.3d at 165-66.
4
1 Abid was inconsistent with his credible fear interview
2 about when a rival political party member threatened him, and
3 he omitted the murders of his seven cousins during that
4 interview. Abid was not confronted with the inconsistency,
5 but because it was obvious, was about when Sadiq first
6 threatened him, and related to the date of the elections
7 during which Abid claimed to have been active, the agency was
8 permitted to rely upon it as part of the totality of the
9 circumstances. See Majidi v. Gonzales, 430 F.3d 77, 81 (2d
10 Cir. 2005) (“Nor have we ever required that an IJ, when faced
11 with inconsistent testimony of an asylum applicant, must
12 always bring any apparent inconsistencies to the applicant’s
13 attention and actively solicit an explanation.”); Ming Shi
14 Xue v. BIA, 439 F.3d 111, 114 (2d Cir. 2006) (IJ need not
15 solicit explanations for “inconsistencies that are
16 ‘dramatic’—that is, sufficiently conspicuous and central to
17 the applicant’s claim as to be self-evident”).
18 As for the omission, Abid first testified that he told
19 the asylum officer that his cousins had been murdered, but
20 then claimed that he had wanted to tell the officer but did
21 not because she had instructed him only to answer the
22 questions she asked. He explained that he was nervous and
5
1 was not as comfortable with the Urdu interpreter because he
2 speaks Punjabi better than Urdu. These explanations are not
3 compelling because the credible fear record demonstrates that
4 the asylum officer asked probing questions to elicit more
5 details, including a final question asking Abid if he wanted
6 to add anything else that had not been covered during the
7 interview. See Majidi, 430 F.3d at 80 (“A petitioner must
8 do more than offer a plausible explanation for his
9 inconsistent statements to secure relief; he must demonstrate
10 that a reasonable fact-finder would be compelled to credit
11 his testimony.” (internal quotations omitted)).
12 Concerning the officer’s directive to answer the
13 questions asked, she said this twice after Abid was
14 unresponsive to questions; it was not a command to limit his
15 answers but rather a request to address what was being asked
16 of him. While it is plausible that Abid was stressed during
17 his interview (which the IJ recognized), stress does not
18 explain why he was able to tell the officer that Nawaz Party
19 members harmed him twice and threatened him four to five times
20 but unable to include a major part of his claim: that they
21 also killed seven of his family members when trying to shoot
22 him. Abid’s claim that he did not completely understand the
6
1 Urdu interpreter at his credible fear interview (and his
2 border interview as discussed below) because he speaks
3 Punjabi better than Urdu does not explain his omissions and
4 inconsistencies because he requested an Urdu interpreter for
5 his interviews, and he indicated in his subsequent asylum
6 application that Urdu was his native language.
7 We recognize that the agency may err if it relies too
8 heavily on minor omissions, at least where the omitted
9 information would have supplemented, rather than
10 contradicted, earlier statements, but the agency did not err
11 here because Abid’s omission——the murder of his seven
12 cousins——concerned a major event that was central to his claim
13 of persecution. See Ming Zhang, 585 F.3d at 726 (holding
14 that the agency may “draw an adverse inference about
15 petitioner’s credibility based, inter alia, on h[is] failure
16 to mention” important details or events in prior statements).
17 Further, the agency did not rely solely on this omission but
18 rather noted it in combination with other inconsistencies.
19 See Hong Fei Gao, 891 F.3d at 78, 82 (holding that “the
20 probative value of a witness’s prior silence on particular
21 facts depends on whether those facts are ones the witness
22 would reasonably have been expected to disclose” and that
7
1 “[o]missions need not go to the heart of a claim to be
2 considered in adverse credibility determinations, but they
3 must still be weighed in light of the totality of the
4 circumstances and in the context of the record as a whole”).
5 The agency also reasonably found that Abid’s testimony
6 and asylum application were inconsistent with his border
7 interview as to the motive of his persecutors. See 8 U.S.C.
8 § 1158(b)(1)(B)(iii). Abid testified and wrote in his
9 application that members of the Nawaz Party, including a man
10 named Danish Sadiq, threatened and tried to kill him (and in
11 the process, killed seven of his cousins) because of his
12 political work with the rival Quaid Party. But he previously
13 told a border patrol agent that he feared returning to
14 Pakistan because his “family was threatened by a man who is
15 known to have killed eight people in [his] village to take
16 [his family’s] land.” There is no copy of this border
17 interview in the record, but Abid did not contest the
18 Department of Homeland Security (“DHS”) attorney’s
19 characterization during cross-examination that he told the
20 border patrol officer that he had been targeted because of a
21 land dispute; he explained that he did not mention his
22 persecutors’ political motives because “the lady who was
8
1 interviewing me, she was asking me and telling me to answer
2 only what she was asking.” This explanation was not
3 compelling because the question 1 that the border patrol agent
4 asked was a broad one designed to solicit the basis for his
5 fear, and Abid never mentioned land disputes he had with the
6 Nawaz Party in his subsequent asylum application and
7 testimony until confronted. See Majidi, 430 F.3d at 80; see
8 also Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289,
9 295 (2d Cir. 2006) (holding that “material inconsistency in
10 an aspect of [an applicant’s] story that served as an example
11 of the very persecution from which he sought asylum . . .
12 afforded substantial evidence to support the adverse
13 credibility finding.” (internal quotation marks and citation
14 omitted)).
15 Finally, the agency properly found that Abid was
16 inconsistent about whether he returned home after the June
17 15, 2013 shooting. Abid’s explanation that he was hiding in
18 his large house did not resolve this inconsistency. See
19 Majidi, 430 F.3d at 80.
1According to the DHS attorney during cross-examination, the
border agent asked Abid, “If you are sent back to your
country, do you fear that you will be persecuted or tortured?”
Abid said he recalled the question from his border interview.
9
1 Having questioned Abid’s credibility, the agency
2 reasonably relied on his failure to rehabilitate his
3 testimony with reliable corroborating evidence. See Biao
4 Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An
5 applicant’s failure to corroborate his or her testimony may
6 bear on credibility, because the absence of corroboration in
7 general makes an applicant unable to rehabilitate testimony
8 that has already been called into question.”). The IJ
9 determined that Abid’s witness was not reliable, and he has
10 not challenged that determination. Abid submitted affidavits
11 from relatives, his party membership card, warrants for his
12 arrest, numerous police reports and statements, information
13 about his father’s political activities and alleged political
14 persecution, and death reports of his family members. The
15 agency did not err in declining to afford significant weight
16 to these documents because the authors of the affidavits,
17 issuer of the party membership card, and persons who provided
18 statements to the police were not available for cross-
19 examination; his family members were interested parties; and
20 the police and government documents were not authenticated.
21 See Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) (“We
22 generally defer to the agency’s evaluation of the weight to
10
1 be afforded an applicant’s documentary evidence.”); see also
2 In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 214 n.5, 215 (BIA
3 2010) (finding that unsworn letters from friends and family
4 were insufficient to provide substantial support for claims
5 because they were from interested witnesses not subject to
6 cross-examination and noting that the “failure to attempt to
7 prove the authenticity of a document through [8 C.F.R. §
8 1287.6] or any other means is significant”), overruled on
9 other grounds by Hui Lin Huang v. Holder, 677 F.3d 130, 133–
10 38 (2d Cir. 2012).
11 Accordingly, given the record inconsistencies, the
12 credible fear interview omission, and the lack of reliable
13 corroboration, the adverse credibility determination is
14 supported by substantial evidence. See Xiu Xia Lin, 534 F.3d
15 at 165–66. The adverse credibility determination was
16 dispositive of asylum, withholding of removal, and CAT relief
17 because all three forms of relief were based on the same
18 discredited factual predicate. See Paul v. Gonzales, 444
19 F.3d 148, 156–57 (2d Cir. 2006).
20
11
1 For the foregoing reasons, the petition for review is
2 DENIED. All pending motions and applications are DENIED and
3 stays VACATED.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe,
6 Clerk of Court
12