18

- 520 Abid v. Barr BIA Christensen , IJ A 20 6 228 816 

### 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.**
**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the**  **Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 28**  **th da**  **y of December**  **, two thousand twenty**  **.** 4 5 **PRESENT:** 6 **DEBRA ANN LIVINGSTON ,**  7 **C h**  **i e**  **f J**  **u d**  **g e**  **,** 8 **PIERRE N. LEVAL ,**  9 **STEVEN J. MENASHI ,**  10 **Circuit Judges.** 11

**_____________________________________** 12 13 **MUHAMMAD NOMAN ABID ,**  14 **Petitioner ,**  15 16

**v. 18** 

**- 520**  17 **NAC** 18 **WILLIAM P. BARR,** 19 **UNITED STATES ATTORNEY GENERAL**  **,** 20 **Respondent .**  21

**_____________________________________** 22 23 **FOR PETITIONER :**  Anas J. Ahmed , Esq. , New York , NY

. 24 25 **FOR RESPONDENT:** Joseph H. Hunt , Assistant Attorney 26 General ; Carl McIntyre , Assistant 27 Director ; Virginia Lum , Trial 282 Attorney, Office of Immigration 1 Litigation, United States 2 Department of Justice, Washington, 3 D C. 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 petitio n for review 7

is DENIED. 8

Petitioner Muhammad Noman Abid , a native and citizen of 9

Pakistan , seeks review of a January 24, 2018 , decision of the 10

BIA affirming a November 9, 2016 , decision of an Immigration 11
Judge (“IJ”) denying Abid’s application for asylum, 12
withholding of removal, and relief under the Convention 13
Against Torture (“CAT”). In r e Muhammad Noman Abid , No. A 14

206 228 816 (B.I.A. Jan. 24 , 2018 ), aff’g No. A 206 228 816 15
(Immig. Ct. N.Y. City Nov. 9, 2016 ). We assume the parties’ 16
familiarity with the underlying facts and procedural history. 17

We have reviewed both the IJ’s and the BIA’s decisions 18

“for the sake of completeness.” Wangchuck v. Dep’t of 19

Homeland Sec. , 448 F.3d 524, 528 (2d Cir. 2006). The 20
applicable standards of review are well established. See 8 21

U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions , 891 F.3d 22
67, 76 (2d Cir. 2018) (reviewing adverse credibility 23

determination for substantial evidence). 243 “Considering the totality of the circumstances, and all 1
relevant factors, a trier of fact may base a credibility 2
determination on the demeanor, candor, or responsiveness of 3
the applicant . . . , the consistency between the applicant’s 4

. . . written and or al statements . . . , the internal 5
consistency of each such statement, [and] the consistency of 6

such statements with other evidence of record . . . without 7
regard to whether an inconsistency, inaccuracy, or falsehood 8
goes to the heart of the applicant’s cl aim, or any other 9

relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer 10
. . . to an IJ’s credibility determination unless, from the 11
totality of the circumstances, it is plain that no reasonable 12

fact

- finder could make such an adverse credibility ruli ng.” 13
Xiu Xia Lin v. Mukasey , 534 F.3d 162, 167 (2d Cir. 2008); 14
accord Hong Fei Gao , 891 F.3d at 76. 15
“[A]dverse credibility determinations based on 16
‘discrepancies’ with a credible fear interview should be 17

examined with care.” Ming Zhang v. Holder , 585 F.3d 715, 725 18
(2d Cir. 2009) (citing Ramsameachire v. Ashcroft , 357 F.3d 19

169, 180

- 81 (2d Cir. 2004)). But “[w]here the record of a 20
credible fear interview displays the hallmarks of 21
reliability, it appropriately can be considered in assessing 224 an alien’s cr edibility.” Id. “Hallmarks of reliability” 1
include whether the interview is a typewritten list of 2
questions and answers, whether it demonstrates that the 3
applicant understood the questions and reflects questions 4

about past harm or fear of future harm, an d whether it was 5
conducted with an interpreter. Id. 6

The agency properly relied on Abid’s credible fear 7

interview because the interview record was reliable. S ee 8

8 U.S.C. § 1158(b)(1)(B)(iii). The “hallmarks of 9
reliability” listed in Ming Zhang are present here: the 10
interview was conducted with an interpreter in a language 11

Abid said he understood; Abid had retained counsel but 12
declined to have his attorney present ; it is memorialized in 13
a question

- and

- answer format; the questions posed were 14
designed to elicit details of an asylum claim; and Abid’s 15
responses indicated that he understood the questions

. 585 16

F.3d at 725. Further, Abid’s counsel did not object when th e 17

IJ admitted the interview record into evidence. 18

Because the record of the credible fear interview was 19
reliable, substantial evidence supports the agency’s 20

determination that Abid was not credible as to his claim of 21
political persecution. See Xiu Xia L in , 534 F.3d at 165

- 66. 225 Abid was inconsistent with his credible fear interview 1

about when a rival political party member threatened him , and 2

he omitted the murders of his seven cousin s during that 3

interview. Abid was not confronted with the inconsistency, 4

but because it was obvious, was about when Sadiq first 5

threatened him, and related to the date of the elections 6
during which Abid claimed to have been active, the agency was 7
permitted to rely upon it as part of the totality of the 8

circumstances. See Majidi v. Gonzales , 430 F.3d 77, 81 (2d 9
Cir. 2005) (“Nor have we ever required that an IJ, when faced 10
with inconsistent testimony of an asylum applicant, must 11
always bring any apparent inconsistencies to the applicant’s 12
attention and actively solicit an explanation.”); Ming Shi 13

Xue v. BIA , 439 F.3d 111, 114 (2d Cir. 2006) (IJ need not 14
solicit explanations for “inconsistencies that are 15

‘dramatic’

— that is, sufficiently conspicuous and central to 16
the applicant’s claim as to be self

- evident”). 17

As for the omission, Abid first te stified that he told 18
the asylum officer th at his cousins had been murdered , but 19

then claimed that he had wanted to tell the officer but did 20
not because she had instructed him only to answer the 21
questions she asked. He explained that he was nervous and 226 was not as comfortable with the Urdu interpreter because he 1
speaks Punjabi better than Urdu

. These explanations are not 2
compelling because the credible fear record demonstrates that 3
the asylum officer asked probing questions to elicit more 4
details, including a final question asking Abid if he wanted 5
to add anything else that had not been covered during the 6

interview. See Majidi , 430 F.3d at 80 (“A petitioner must 7
do more than offer a plausible explanation for his 8

inconsistent statements to secure relief; he must demonstrate 9

that a reasonable fact

- finder would be compelled to credit 10
his testimony.” (internal quotations omitted)). 11
Concerning the officer’s directive to answer the 12
questions asked, she said this twice after Abid was 13
unresponsive to questions; i t was not a command to limit his 14

answers but rather a request to address what was being asked 15

of him. While it is plausible that Abid was stressed during 16
his interview (which the IJ recognized), stress does not 17
explain why he was able to tell the officer that Nawaz Party 18

members harmed him twice and threatened him four to five times 19

but unable to include a major part of his claim : that they 20
also killed seven of his family members when trying to shoot 21

him

. A bid’s claim that he did not completely understand the 227 Urdu interpreter at his credible fear interview (and his 1

border interview as discussed below) because he speaks 2
Punjabi better than Urdu does not explain his omission s and 3

inconsistencies because he req uested an Urdu interpreter for 4

his interviews , and he indicated in his subsequent asylum 5
application that Urdu was his native language. 6
We recognize that the agency may err if it relies too 7
heavily on minor omissions, at least where the omitted 8

informatio n would have supplemented, rather than 9
contradicted, earlier statements, but the agency did not err 10

here because Abid’s omission

—— the murder of his seven 11

cousins

—— concerned a major event that was central to his claim 12
of persecution. See Ming Zhang , 585 F.3d at 726 (holding 13
that the agency may “draw an adverse inference about 14
petitioner’s credibility based, inter alia, on h[is] failure 15
to mention” important details or events in prior statements). 16
Further, the agency did not rely solely on this omis sion but 17

rather noted it in combination with other inconsistencies. 18
See Hong Fei Gao , 891 F.3d at 78, 82 (holding that “the 19
probative value of a witness’s prior silence on particular 20
facts depends on whether those facts are ones the witness 21

would reasonab ly have been expected to disclose” and that 228 “[o]missions need not go to the heart of a claim to be 1
considered in adverse credibility determinations, but they 2
must still be weighed in light of the totality of the 3

circumstances and in the context of the reco rd as a whole”)

. 4
The agency also reasonably found that Abid ’s testimony 5
and asylum application w ere inconsistent with his border 6
interview as to the motive of his persecutors. S ee 8 U.S.C. 7

§ 1158(b)(1)(B)(iii). Abid testified and wrote in his 8
application that members of the Nawaz Party, including a man 9
named Danish Sadiq, threatened and tried to kill him (and in 10
the process, killed seven of his cousins) because of his 11
political work with the rival Quaid Party. B ut he previously 12
told a border patrol agent that he feared returning to 13
Pakistan because his “family was threatened by a man who is 14
known to have killed eight people in [his] village to take 15
[his family’s] land.” There is no copy of this border 16

interview in the record, but Abid did not contest the 17
Department of Homeland Security (“DHS”) attorney’s 18
characterization during cross

- examination that he told the 19
border patrol officer that he had been targeted because of a 20
land dispute ; he explained that he did no t mention his 21
persecutors’ political motives because “the lady who was 229 interviewing me, she was asking me and telling me to answer 1
only what she was asking.” This explanation was not 2
compelling because the question 1 that the border patrol agent 3

asked was a broad one designed to solicit the basis for his 4
fear, and Abid never mentioned land disputes he had with the 5
Nawaz Party in his subsequent asylum application and 6
testimony until confronted. See Majidi , 430 F.3d at 80; see 7
also Xian Tuan Ye v. Dep’t of Homeland Sec. , 446 F.3d 289, 8
295 (2d Cir. 2006) (holding that “material inconsistency in 9
an aspect of [an applicant’s] story that served as an example 10
of the very persecution from which he sought asylum . . . 11
afforded substantial evidence to support the ad verse 12
credibility finding.” (internal quotation marks and citation 13

omitted)). 14
Finally, the agency properly found that Abid was 15

inconsistent about whether he returned home after the June 16
15, 2013 shooting. Abid’s explanation that he was hiding in 17

his large house did not resolve this inconsistency. S ee 18
Majidi , 430 F.3d at 80. 19

1 According 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.10 Having questioned Abid’s credibility, the agency 1
reasonably relied on his failure to rehabilitate his 2
testimony with reliable corroborating evidence. See Biao 3

Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 2007) (“An 4
applicant’s failure to corroborate his or her testimony may 5
bear on credibility, because the absence of corroboration in 6
general makes an applicant unable to rehabilitate testimony 7
that has already been called into que stion.”). The IJ 8

determined that Abid’s witness was not reliable, and he has 9
not challenged that determination. Abid submitted affidavits 10
from relatives, his party membership card, warrants for his 11
arrest, numerous police reports and statements, informat ion 12
about his father’s political activities and alleged political 13
persecution, and death reports of his family members

. The 14
agency did not err in declining to afford significant weight 15

to these documents because the authors of the affidavits, 16

issuer of th e party membership card, and persons who provided 17
statements to the police were not available for cross

18
examination; his family members were interested parties; and 19
the police and government documents were not authenticated. 20

See Y.C. v. Holder , 741 F.3d 3 24, 332 (2d Cir. 2013) ( “We 21
generally defer to the agency’s evaluation of the weight to 2211 be afforded an applicant’s documentary evidence

. ”); see also 1

In re H

- L

- H

- & Z

- Y

- Z

- , 25 I. & N. Dec. 209, 214 n.5, 215 (BIA 2
2010) (finding that unsworn letters from frie nds and family 3
were insufficient to provide substantial support for claims 4
because they were from interested witnesses not subject to 5

cross

- examination and noting that the “failure to attempt to 6
prove the authenticity of a document through [8 C.F.R. § 7

1287 .6] or any other means is significant”), overruled on 8

other grounds by Hui Lin Huang v. Holder , 677 F.3d 130, 133

– 9

38 (2d Cir. 2012). 10
Accordingly, given the record inconsistencies, the 11

credible fear interview omission, and the lack of reliable 12
corroboration, the adverse credibility determination is 13
supported by substantial evidence. See Xiu Xia Lin , 534 F.3d 14

at 165

– 66. The adverse credibility determination was 15
dispositive of asylum, wi thholding of removal, and CAT relief 16

because all three forms of relief were based on the same 17
discredited factual predicate. See Paul v. Gonzales , 444 18

F.3d 148, 156

– 57 (2d Cir. 2006). 19

2012 For the foregoing reasons, the petition for review is 1

DENIED

. All pe nding motions and applications are DENIED and 2

stays VACATED. 3

FOR THE COURT: 4 Catherine O ’ Hagan Wolfe , 5 Clerk of Court 6