Jiaman v. Garland ( 2021 )

19-492
Jiaman v. Garland
BIA
Poczter, IJ
A202 134 998
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 21st day of June, two thousand twenty-one.
5
6 PRESENT:
7 REENA RAGGI,
8 RAYMOND J. LOHIER, JR.,
9 STEVEN J. MENASHI,
10 Circuit Judges.
11 _____________________________________
12
13 MD BODIU JIAMAN,
14 Petitioner,
15
16 v. 19-492
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Thomas V. Massucci, Esq.,
24 New York, NY.
25
26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
27 General; Melissa Neiman-Kelting,
28 Assistant Director; Jacob A.
29 Bashyrov, Trial Attorney; Office of
30 Immigration Litigation, United
1 States Department of Justice,
2 Washington, DC.
3
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Md Bodiu Jiaman, a native and citizen of
9 Bangladesh, seeks review of a BIA decision affirming an
10 Immigration Judge’s (“IJ”) denial of Jiaman’s application for
11 asylum, withholding of removal, and Convention Against
12 Torture (“CAT”) relief. See In re Md Bodiu Jiaman, No. A202
13 134 998 (B.I.A. Feb. 14, 2019), aff’g No. A202 134 998 (Immig.
14 Ct. N.Y. City Dec. 13, 2017). We assume the parties’
15 familiarity with the underlying facts and procedural history.
16 We review the IJ’s decision, as modified by the BIA,
17 “under the substantial evidence standard, which requires that
18 [it] be supported by reasonable, substantial and probative
19 evidence in the record when considered as a whole.” Hong Fei
20 Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018)(internal
21 quotation marks omitted). “We defer . . . to an IJ’s
22 credibility determination unless, from the totality of the
23 circumstances, it is plain that no reasonable fact-finder
24 could make such an adverse credibility ruling.” Id.2
1 (internal quotation marks omitted). “Considering the
2 totality of the circumstances, and all relevant factors, a
3 trier of fact may base a credibility determination on . . .
4 the consistency between the applicant’s or witness’s written
5 and oral statements (whenever made and whether or not under
6 oath, and considering the circumstances under which the
7 statements were made) . . . [and] the consistency of such
8 statements with other evidence of record . . . without regard
9 to whether an inconsistency, inaccuracy, or falsehood goes to
10 the heart of the applicant’s claim . . . .” 8 U.S.C.
11 § 1158(b)(1)(B)(iii). Here, substantial evidence supports
12 the agency’s determination that Jiaman was not credible as to
13 his claim that members of the Awami League threatened and
14 beat him on account of his political activities for the
15 Bangladesh National Party.
16 As an initial matter, Jiaman’s arguments were either
17 exhausted before the BIA or may be treated as such given that
18 they are “arguments by extension” of those raised below, Gill
19 v. INS, 420 F.3d 82, 886 (2d Cir. 2005), with the exception
20 of his challenge to the IJ’s reliance on an inconsistent
21 statement made in his bond proceedings. We need not consider
22 the unexhausted challenge, see Lin Zhong v. U.S. Dep’t of
3
1 Justice, 480 F.3d 104, 107 n.1, 122 (2d Cir. 2007), but we
2 note that the agency may rely on the applicant’s statements
3 “whenever made and whether or not under oath” in making a
4 credibility determination, 8 U.S.C. § 1158(b)(1)(B)(iii).
5 In finding Jiaman not credible, the agency reasonably
6 relied on several identified inconsistencies, including that:
7 (1) Jiaman stated in his credible fear interview that he was
8 first threatened on February 20, 2014, which was just two
9 days before he was purportedly beaten, but he testified at
10 his merits hearing that he was first threatened in March 2013,
11 almost one year before being beaten; (2) his evidence was
12 inconsistent in describing the medical treatment he received
13 for his twisted ankle, and he changed his testimony when
14 confronted with the conflicting evidence; (3) his evidence
15 was inconsistent regarding whether he spoke to the doctor who
16 treated him; (4) his credible fear interview and hearing
17 testimony were inconsistent regarding whether Awami League
18 members called him with threats as well as threatened his
19 mother in April 2014, or whether they threatened him only
20 through his mother; and (5) his asylum application and
21 testimony were inconsistent regarding whether his father was
22 deceased and whether he has a brother. This court has
4
1 “recognized that even a single inconsistency might preclude
2 an alien from showing that an IJ was compelled to find him
3 credible. Multiple inconsistencies would so preclude even
4 more forcefully.” Likai Gao v. Barr, 968 F.3d 137, 145 n.8
5 (2d Cir. 2020). 1
6 The agency reasonably relied further on Jiaman’s failure
7 to rehabilitate his testimony with compelling explanations
8 for inconsistencies or reliable corroborating evidence. See
9 Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A
10 petitioner must do more than offer a plausible explanation
11 for his inconsistent statements to secure relief; he must
12 demonstrate that a reasonable fact-finder would be compelled
13 to credit his testimony.” (internal quotation marks omitted)
14 (emphasis in original)); see 8 U.S.C. § 1158(b)(1)(B)(ii)
15 (“Where the trier of fact determines that the applicant should
16 provide evidence that corroborates otherwise credible
17 testimony, such evidence must be provided unless the
18 applicant does not have the evidence and cannot reasonably
1Insofar as the agency also pointed to several omissions that did
not support a finding of fabrication and a minor inconsistency in
Jiaman’s name that was not attributable to him, see 8 U.S.C.
§ 1158(b)(1)(B)(iii); Hong Fei Gao, 891 F.3d at 82, we conclude it
would be futile to remand because the other inconsistencies, by
themselves, constitute substantial evidence to support the adverse
credibility determination. See Xiao Ji Chen v. U.S. Dep’t of
Justice, 471 F.3d 315, 339 (2d Cir. 2006).
5
1 obtain the evidence.”). The agency was entitled to give
2 diminished weight to statements from Jiaman’s relatives,
3 acquaintances, and doctor in Bangladesh because the
4 declarants were interested persons not available for cross-
5 examination, and certain of their statements were
6 inconsistent with other record evidence. See Y.C. v. Holder,
7 741 F.3d 324, 332, 334 (2d Cir. 2013) (deferring to agency's
8 determination that unsworn letter by interested witness
9 should be accorded “very little weight”); see also In re H-
10 L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (finding
11 letters from asylum applicant’s friends and family
12 insufficient to provide substantial support as to risk of
13 persecution because they were from interested witnesses not
14 subject to cross-examination), overruled on other grounds by
15 Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012).
16 Given these findings, the agency’s adverse credibility
17 determination is supported by substantial evidence. See
18 8 U.S.C. § 1158(b)(1)(B)(iii). That determination is
19 dispositive of asylum, withholding of removal, and CAT relief
20 because all three claims are based on the same factual
21 predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d
22 Cir. 2006).
6
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
7