21

- 6444 Alahi v. Garland BIA Poczter , IJ A 209 420 191 

### 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. At a stated term of the United States Court of Appeals for the Second 1 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 2 Square, in the City of New York, on the 1 8 t h da y of O c t o b e r , two thousand 3 twenty

- t hree

. 4 5 PRESENT: 6 DENNIS JACOBS, 7 BETH ROBINSON, 8 MARIA ARAÚJO KAHN, 9 Circuit Judges. 10

_____________________________________ 11 12 MONZUR ALAHI , 13 Petitioner , 14 15

v. 21

- 6444 16 NAC 17 MERRICK B. GARLAND , UNITED 18 STATES ATTORNEY GENERAL, 19 Respondent

. * 20

_____________________________________ 21 22 23

* The Clerk’s office is directed to amend the caption as reflected above.2 FOR PETITIONER : Xiaotao Wang , Esq., Flushing , NY

. 1 2 FOR RESPONDENT: Brian M. Boynton , Principal Deputy Assistant 3 Attorney General ; Jennifer R. Khouri , Senior 4 Litigation Counsel ; Brandon T. Callahan , 5 Trial Attorney, Office of Immigration 6 Litigation, United States Department of 7 Justice, Washington, D C. 8 UPON DUE CONSIDERATION of this petition for review of a Board of 9
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, 10

AND DECREED that the petitio n for review is DENIED

. 11

Petitioner Monzur Alahi , a native and citizen of Bangladesh , seeks review 12

of a July 15, 2021 , decision of the BIA affirming a July 31, 2018 , decision of an 13
Immigration Judge (“IJ”) de nying Alahi’s application f or asylum, withholding of 14
removal, and relief under the Convention Against Torture (“CAT”)

. I n re Monzur 15

Alahi , No. A 209 420 191 (B.I.A. July 15, 2021 ), aff’g No. A 209 420 191 (Immig. Ct. 16
N.Y. City July 31, 2018 ). We assume the parties’ familiarity with the underlying 17
facts and procedural history. 18

Under the circumstances, we have considered the IJ’s decision as modified 19
by the BIA , meaning minus the IJ’s burden findings that the BIA did not reach

. 20

See Xue Hong Yang v. U.S. Dep’t of Just. , 426 F.3 d 520, 522 (2d Cir. 2005). We review 21

an adverse credibility determination “under the substantial evidence standard

. ” 223 Hong Fei Gao v. Sessions , 891 F.3d 67, 76 (2d Cir. 2018)

. “[T]he administrative 1
findings of fact are conclusive unless any reasonable adjudicator would be 2
compelled to conclude t o the contrary.” 8 U.S.C. § 1252(b)(4)(B). “Considering 3
the totality of the circumstances, and all relevant factors, a trier of fact may base a 4
credibility determination on

. . . the consistency between the applicant’s or 5

witness’s written and oral state ments (whenever made and whether or not under 6
oath, and considering the circumstances under which the statements were made), 7
the internal consistency of each such statement, [and] the consistency of such 8

statements with other evidence of record . . . , and any inaccuracies or falsehoods 9
in such statements, without regard to whether an inconsistency, inaccuracy, or 10
falsehood goes to the heart of the applicant ’ s claim, or any other relevant factor .” 11

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

13

finde r could make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey , 14
534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao , 891 F. 3d at 76. 15

Substantial evidenc e supports the agency’s determination that Alahi was 16

not credible as to his claim that members of the Awami League attacked and 17

threatened to kill him when he resisted their attempt to extort him

. 184 The agency reasonably r elied on Alahi’s inconsistent statements and 1

omissions regarding the timing of the attack relative to the assailants’ initial 2
demand that he give them money, how many times he was threatened, what 3
injuries he suffered, where he went after the attack, and how he knew his attackers 4
were members of the Awami League

. See 8 U.S.C. § 1158(b)(1)(B)(iii); Likai Gao v. 5

Barr , 968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven a single inconsistency might 6
preclude an alien from showing that an IJ was compelle d to find him credible. 7
Multiple inconsistencies wou ld so preclude even more forcefully.”) ; Hong Fei Gao , 8

891 F.3d at 78

– 79 ( noting that an omission may support an adver se credibility 9

determination if the omitted “facts are ones that a credible petitioner would 10
reasonably have been expected to disclose under the relevant circumstances”)

. 11

The agency reasonably relied on the record of Alahi’s credible fear interview 12
in assessing credibility because the interview record bears the hallmarks of 13

rel iability: I t was conducted with an interpreter, it was memorialized in a 14
typewritten question

- and

- answer format, the questions posed were designed to 15
elicit details of his asylum claim, and Alahi’s responses indicated that he 16
understood the questions posed

. See Ming Zhang v. Holder , 585 F.3d 715, 724

– 2 6 17
(2d Cir. 2009) (requiring scrutiny of credible fear interviews but finding record 185 reliable where it was typewritten, demonstrated that the applicant understood the 1
questions, reflected questions about past harm or fear of future harm, and was 2
conducted with an interpreter). And c ontrary to Alahi’s argument to this Court, 3
the record of the credible fear interview reflects that Alahi was expressly advised 4
that he could reschedule the interview so his sponsor could hire him an attorney, 5
and he elected to proceed by himself. He did not testify to the contrary in the 6
hearing. 7

Further, some of the inconsistencies relied upon by the agency relate to 8

matters A lahi described in the credible fear interview but omitted from his hearing 9
testimony, undermining his argument that the agency improperly rested its no

10
credibility finding on his failure in the credible fear interview to “mention every 11
detail and specific insight into the persecution which he suffered.” Pet. Br. 14. 12
In particular , in his credible fear interview Alahi described a second encounter 13

with the assailants in which they came to his home after he was released from the 14
hospital and told him they would beat him again if he tried to report them

. He 15

did not describe such a second encounter in his hearing testimony. 16
Finally, Alahi did not compellingly explain his inconsistent statements , and 17
his explanations themselves resulted in additional in consistencies

. S ee Majidi v. 186 Gonzales , 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more than offer a 1
plausible explanation for his inconsistent statements to secure relief; he must 2

demonstrate that a reasonable fact

- finder would be compelled to cred it his 3
testimony.” ( internal quotation marks and citation omitted)). 4
Having questioned Alahi’s credibility, the agency reasonably relied further 5
on his failure to rehabilitate his testimony with reliable corroborating evidence. 6
“An applicant’s failure to corroborate his or her testimony may bear on credibility, 7

because the absence of corroboration in general makes an applicant unable to 8
rehabilitate testimony that has already been called into question.” Biao Yang v. 9

Gonzales , 496 F.3d 268, 273 (2d Cir. 2007). The IJ reasonably found that letters 10
from Alahi’s family and friends did not rehabilitate his credibility because they 11

did not mention a second threat he claimed to have received. See Y.C. v. Holder , 12
741 F.3d 324, 334 (2d Cir. 2013) (“We defer to the agency’s determination of the 13
weight afforded to an alien’s documentary evidence.”). The IJ also did not err in 14
finding Alahi’s handwritten medical record unreliable because it misspelled 15

numerous words. Id. at 334. 16

The inconsistencies and lack of reliable corroboration constitute substantial 17

evidence for the agency’s adverse credibility deter mination. See 8 U.S.C. 187 § 1158(b)(1)(B)(iii); Likai Gao , 968 F.3d at 145 n.8 ; Xiu Xia Lin , 534 F.3d at 165

– 6 7 ; 1
Biao Yang , 496 F.3d at 273

. T he adverse credibility determination i s dispositive of 2
asylum, withholding of removal, and CAT relief

. See Paul v. Gonzales , 444 F.3d 3

148, 15 6

– 5 7 (2d Cir. 2006). 4
We reject Alahi’s argument, not raised before the BIA, that even in the face 5
of an adverse credibility finding as to his clai m of past persecution , Alahi 6

established a well

- founded fear of future persecution on the basis of “pattern or 7
practice” evidence

. See id. at 154 ( “[W]ith respect to petitions for both asylum and 8
withholding of removal, an applicant may prevail on a theory of future 9
persecution despite an IJ’s adverse credibility rulin g as to past persecuti on, so long 10
as the factual predicate of the applicant’s claim of future persecution is independent of the 11
testimony that the IJ found not to be credible.” ). Alahi did not exhaust this argument 12
by presenting it to the BIA. See Zhong v. U.S. Department of Justice , 480 F.3d 104, 13
122 (2d Cir. 2007) (requiring petitioner to exhaust issues before the BIA), abrogated, 14
in part on other grounds by Santos

- Zacaria v. Garland , 143 S. Ct. 1103, 1111

– 14 (2023) 15
(holding that exhaustion under 8 U.S.C. § 1252(d)(1) is not jurisdictional). 16

In addition , Alahi’s argument that he would face future persecution if 17

removed depends in part on his claim to have been attacked by members of the 188 Awami League, which the IJ found to be not credible. Plus, his brief relies in part 1
on country conditions evidence, such as the U.S. Department of State Bangladesh 2
2018 Human Rights Report , that was not in evidence. See 8 U.S.C. § 1252(b)(4)(A) 3
(“[T]he court of appeals shall decide the petition only on the administrative record 4
on which the order of removal is based.”) . And to the extent that Alahi has cited 5
country conditions evidence describing governme nt sponsored violations of the 6
human rights of members of the opposition political party , that evidence is of 7

limited relevance here, where Alahi has testified that he and his family were “not 8
involved in any political party.” C ert

. A dmin

. R ec

. 134. 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 14