Alam-Bhuyan v. Garland ( 2023 )

20-3154
Alam-Bhuyan v. Garland
BIA
Wright, IJ
A206 025 881
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.
1 At a stated term of the United States Court of Appeals for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
3 City of New York, on the 20th day of July, two thousand twenty-three.
4
5 PRESENT:
6 JOHN M. WALKER, JR.,
7 RICHARD J. SULLIVAN,
8 SARAH A. L. MERRIAM,
9 Circuit Judges.
10 _____________________________________
11
12 MD ANWARUL ALAM-BHUYAN,
13 Petitioner,
14
15 v. 20-3154
16 NAC
17 MERRICK B. GARLAND, UNITED STATES
18 ATTORNEY GENERAL,
19 Respondent.
20 _____________________________________
21
1 FOR PETITIONER: Khagendra Gharti-Chhetry, Esq., New York,
2 NY.
3
4 FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney
5 General; Sabatino F. Leo, Assistant Director;
6 Jaclyn G. Hagner, Attorney, Office of
7 Immigration Litigation, United States
8 Department of Justice, 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,
11 AND DECREED that the petition for review is GRANTED and the case is
12 REMANDED to the BIA.
13 Petitioner MD Anwarul Alam-Bhuyan, a native and citizen of Bangladesh,
14 seeks review of an August 31, 2020 decision of the BIA denying his motion to
15 remand and affirming a May 29, 2018 decision of an Immigration Judge (“IJ”)
16 denying his application for asylum, withholding of removal, and protection under
17 the Convention Against Torture (“CAT”). In re MD Anwarul Alam-Bhuyan, No.
18 A206 025 881 (B.I.A. Aug. 31, 2020), aff’g No. A206 025 881 (Immigr. Ct. N.Y.C. May
19 29, 2018). We assume the parties’ familiarity with the underlying facts and
20 procedural history.
21 In his brief, Alam-Bhuyan challenges the IJ’s adverse-credibility finding,
22 which was the IJ’s sole basis for denying his claims for relief. We defer to an IJ’s
2
1 adverse-credibility determination “unless, from the totality of the circumstances,
2 it is plain that no reasonable fact-finder could make such an adverse credibility
3 ruling.” Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (internal quotation
4 marks omitted). On review, we ask “whether the agency has provided ‘specific,
5 cogent reasons for the adverse credibility finding and whether those reasons bear
6 a legitimate nexus to the finding.’” Id. at 77 (quoting Xiu Xia Lin v. Mukasey, 534
7 F.3d 162, 166 (2d Cir. 2008)). An adverse-credibility determination may be based
8 on, among other factors, inconsistencies between “the applicant’s or witness’s
9 written and oral statements” and “other evidence of record,” as well as “any
10 inaccuracies or falsehoods in such statements, without regard to whether an
11 inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim,
12 or any other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). The agency must
13 consider an inconsistency “in light of the totality of the circumstances” and
14 “discrepancies . . . must be weighed in light of their significance to the total context
15 of [the petitioner’s] claim of persecution.” Hong Fei Gao, 891 F.3d at 79 (internal
16 quotation marks omitted).
17 The IJ believed that there was a “significant discrepancy” between
18 Alam-Bhuyan’s testimony and a letter from the Bangladesh Nationalist Party
19 (the “BNP”) and relied on that asserted discrepancy to find Alam-Bhuyan not
3
1 credible. Certified Admin. Record at 67. At his hearing, Alam-Bhuyan testified
2 that he was attacked twice by members of a rival political party – once on
3 November 4, 2012, resulting in “two to three hours” of medical treatment at his
4 family’s pharmacy, id. at 110–12, and once on November 26, 2012, resulting in a
5 three-day stay at a local hospital, id. at 113–14. The BNP’s letter, meanwhile, stated
6 that Alam-Bhuyan was “attacked . . . severely once.” Id. at 490. Based on a belief
7 that the BNP’s letter contradicted Alam-Bhuyan’s testimony that he was attacked
8 on two occasions, the IJ refused to credit Alam-Bhuyan’s account and denied his
9 claims for relief.
10 The IJ’s finding rested on a misreading of the BNP’s letter. In making the
11 adverse-credibility finding, the IJ characterized the letter as stating that
12 Alam-Bhuyan “was attacked once.” Id. at 67. The letter, however, asserts that
13 Alam-Bhuyan was “attacked . . . severely once,” id. at 490 (emphasis added) – an
14 assertion that is consistent with Alam-Bhuyan’s testimony regarding his course of
15 treatment following each attack. To be sure, the letter is silent as to the first attack.
16 But that omission does not amount to a contradiction of Alam-Bhuyan’s testimony,
17 which the IJ acknowledged was independently corroborated by medical records.
18 Indeed, we have cautioned against relying on third-party omissions that do not
19 create an inconsistency. See Hong Fei Gao, 891 F.3d at 81 (holding that “where a
4
1 third party’s omission creates no inconsistency with an applicant’s own
2 statements,” the “applicant’s failure to explain [the omission] is less probative of
3 [his] credibility” (emphasis omitted)). Accordingly, the IJ’s reliance on the
4 purported discrepancy between Alam-Bhuyan’s testimony and the BNP’s letter
5 does not support the adverse-credibility determination.
6 Nor was the adverse-credibility determination bolstered by the IJ’s finding
7 that Alam-Bhuyan could not explain the “discrepancy.” Certified Admin. Record
8 at 67. We have hesitated to fault a petitioner for being unable to explain why
9 information may have been omitted by a third party, where, as here, the petitioner
10 “was not in a position to know” why the third party omitted the information.
11 Singh v. Garland, 6 F.4th 418, 429 (2d Cir. 2021). Therefore, while Alam-Bhuyan
12 was asked to speculate about why the BNP’s letter mentioned only one of the two
13 attacks, his failure provide a satisfactory answer does not undermine his
14 credibility, particularly in light of corroborating medical records that the IJ appears
15 to have credited. Without more, we cannot say that the agency “provided specific,
16 cogent reasons for the adverse credibility finding . . . [that] bear a legitimate nexus
17 to the finding.” Hong Fei Gao, 891 F.3d at 77 (internal quotation marks omitted).
5
1 For the foregoing reasons, the petition for review is GRANTED, the BIA’s
2 decision is VACATED, and the case is REMANDED for further proceedings. All
3 pending motions and applications are DENIED and stays VACATED. 1
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk of Court
1Because we grant Alam-Bhuyan’s petition for review, we need not reach the BIA’s ruling on the
motion to remand. See I.N.S. v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts . . .
are not required to make findings on issues the decision of which is unnecessary to the results
they reach.”).
6