21-6444

Alahi v. Garland

BIA

Poczter, IJ

A209 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.

1 At a stated term of the United States Court of Appeals for the Second 

2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 

Square, in the City of New York, on the 18 3 th day of October, two thousand

4 twenty-three.

5

6 PRESENT:

7 DENNIS JACOBS,

8 BETH ROBINSON,

9 MARIA ARAÚJO KAHN,

10 Circuit Judges.

11 _____________________________________

12

13 MONZUR ALAHI,

14 Petitioner,

15

16 v. 21-6444

17 NAC

18 MERRICK B. GARLAND, UNITED 

19 STATES ATTORNEY GENERAL,

20 Respondent.*

21 _____________________________________

22

23

* The Clerk’s office is directed to amend the caption as reflected above.
2

1 FOR PETITIONER: Xiaotao Wang, Esq., Flushing, NY.

2

3 FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant

4 Attorney General; Jennifer R. Khouri, Senior 

5 Litigation Counsel; Brandon T. Callahan, 

6 Trial Attorney, Office of Immigration 

7 Litigation, United States Department of 

8 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 DENIED.

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

13 of a July 15, 2021, decision of the BIA affirming a July 31, 2018, decision of an 

14 Immigration Judge (“IJ”) denying Alahi’s application for asylum, withholding of 

15 removal, and relief under the Convention Against Torture (“CAT”). In re Monzur 

16 Alahi, No. A209 420 191 (B.I.A. July 15, 2021), aff’g No. A209 420 191 (Immig. Ct. 

17 N.Y. City July 31, 2018). We assume the parties’ familiarity with the underlying 

18 facts and procedural history.

19 Under the circumstances, we have considered the IJ’s decision as modified 

20 by the BIA, meaning minus the IJ’s burden findings that the BIA did not reach. 

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

22 an adverse credibility determination “under the substantial evidence standard.”
3

1 Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). “[T]he administrative 

2 findings of fact are conclusive unless any reasonable adjudicator would be 

3 compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). “Considering 

4 the totality of the circumstances, and all relevant factors, a trier of fact may base a 

5 credibility determination on . . . the consistency between the applicant’s or 

6 witness’s written and oral statements (whenever made and whether or not under 

7 oath, and considering the circumstances under which the statements were made), 

8 the internal consistency of each such statement, [and] the consistency of such 

9 statements with other evidence of record . . . , and any inaccuracies or falsehoods 

10 in such statements, without regard to whether an inconsistency, inaccuracy, or 

11 falsehood goes to the heart of the applicant’s claim, or any other relevant factor.” 

12 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility determination 

13 unless, from the totality of the circumstances, it is plain that no reasonable fact14 finder could make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 

15 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d at 76. 

16 Substantial evidence supports the agency’s determination that Alahi was 

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

18 threatened to kill him when he resisted their attempt to extort him. 
4

1 The agency reasonably relied on Alahi’s inconsistent statements and 

2 omissions regarding the timing of the attack relative to the assailants’ initial 

3 demand that he give them money, how many times he was threatened, what 

4 injuries he suffered, where he went after the attack, and how he knew his attackers 

5 were members of the Awami League. See 8 U.S.C. § 1158(b)(1)(B)(iii); Likai Gao v. 

6 Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven a single inconsistency might 

7 preclude an alien from showing that an IJ was compelled to find him credible. 

8 Multiple inconsistencies would so preclude even more forcefully.”); Hong Fei Gao, 

9 891 F.3d at 78–79 (noting that an omission may support an adverse credibility 

10 determination if the omitted “facts are ones that a credible petitioner would 

11 reasonably have been expected to disclose under the relevant circumstances”). 

12 The agency reasonably relied on the record of Alahi’s credible fear interview 

13 in assessing credibility because the interview record bears the hallmarks of 

14 reliability: It was conducted with an interpreter, it was memorialized in a 

15 typewritten question-and-answer format, the questions posed were designed to 

16 elicit details of his asylum claim, and Alahi’s responses indicated that he 

17 understood the questions posed. See Ming Zhang v. Holder, 585 F.3d 715, 724–26

18 (2d Cir. 2009) (requiring scrutiny of credible fear interviews but finding record 
5

1 reliable where it was typewritten, demonstrated that the applicant understood the 

2 questions, reflected questions about past harm or fear of future harm, and was 

3 conducted with an interpreter). And contrary to Alahi’s argument to this Court, 

4 the record of the credible fear interview reflects that Alahi was expressly advised

5 that he could reschedule the interview so his sponsor could hire him an attorney, 

6 and he elected to proceed by himself. He did not testify to the contrary in the 

7 hearing.

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

9 matters Alahi described in the credible fear interview but omitted from his hearing

10 testimony, undermining his argument that the agency improperly rested its no11 credibility finding on his failure in the credible fear interview to “mention every 

12 detail and specific insight into the persecution which he suffered.” Pet. Br. 14. 

13 In particular, in his credible fear interview Alahi described a second encounter 

14 with the assailants in which they came to his home after he was released from the 

15 hospital and told him they would beat him again if he tried to report them. He 

16 did not describe such a second encounter in his hearing testimony.

17 Finally, Alahi did not compellingly explain his inconsistent statements, and 

18 his explanations themselves resulted in additional inconsistencies. See Majidi v. 
6

1 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more than offer a 

2 plausible explanation for his inconsistent statements to secure relief; he must 

3 demonstrate that a reasonable fact-finder would be compelled to credit his 

4 testimony.” (internal quotation marks and citation omitted)). 

5 Having questioned Alahi’s credibility, the agency reasonably relied further 

6 on his failure to rehabilitate his testimony with reliable corroborating evidence. 

7 “An applicant’s failure to corroborate his or her testimony may bear on credibility, 

8 because the absence of corroboration in general makes an applicant unable to 

9 rehabilitate testimony that has already been called into question.” Biao Yang v. 

10 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The IJ reasonably found that letters 

11 from Alahi’s family and friends did not rehabilitate his credibility because they 

12 did not mention a second threat he claimed to have received. See Y.C. v. Holder, 

13 741 F.3d 324, 334 (2d Cir. 2013) (“We defer to the agency’s determination of the 

14 weight afforded to an alien’s documentary evidence.”). The IJ also did not err in 

15 finding Alahi’s handwritten medical record unreliable because it misspelled 

16 numerous words. Id. at 334. 

17 The inconsistencies and lack of reliable corroboration constitute substantial 

18 evidence for the agency’s adverse credibility determination. See 8 U.S.C. 
7

1 § 1158(b)(1)(B)(iii); Likai Gao, 968 F.3d at 145 n.8; Xiu Xia Lin, 534 F.3d at 165–67; 

2 Biao Yang, 496 F.3d at 273. The adverse credibility determination is dispositive of 

3 asylum, withholding of removal, and CAT relief. See Paul v. Gonzales, 444 F.3d 

4 148, 156–57 (2d Cir. 2006). 

5 We reject Alahi’s argument, not raised before the BIA, that even in the face 

6 of an adverse credibility finding as to his claim of past persecution, Alahi 

7 established a well-founded fear of future persecution on the basis of “pattern or 

8 practice” evidence. See id. at 154(“[W]ith respect to petitions for both asylum and 

9 withholding of removal, an applicant may prevail on a theory of future 

10 persecution despite an IJ’s adverse credibility ruling as to past persecution, so long 

11 as the factual predicate of the applicant’s claim of future persecution is independent of the 

12 testimony that the IJ found not to be credible.”). Alahi did not exhaust this argument 

13 by presenting it to the BIA. See Zhong v. U.S. Department of Justice, 480 F.3d 104, 

14 122 (2d Cir. 2007) (requiring petitioner to exhaust issues before the BIA), abrogated, 

15 in part on other grounds by Santos-Zacaria v. Garland, 143 S. Ct. 1103, 1111–14 (2023) 

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

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

18 removed depends in part on his claim to have been attacked by members of the 
8

1 Awami League, which the IJ found to be not credible. Plus, his brief relies in part 

2 on country conditions evidence, such as the U.S. Department of State Bangladesh 

3 2018 Human Rights Report, that was not in evidence. See 8 U.S.C. § 1252(b)(4)(A) 

4 (“[T]he court of appeals shall decide the petition only on the administrative record 

5 on which the order of removal is based.”). And to the extent that Alahi has cited 

6 country conditions evidence describing government sponsored violations of the 

7 human rights of members of the opposition political party, that evidence is of 

8 limited relevance here, where Alahi has testified that he and his family were “not 

9 involved in any political party.” Cert. Admin. Rec. 134. 

10 For the foregoing reasons, the petition for review is DENIED. All pending 

11 motions and applications are DENIED and stays VACATED.

12 FOR THE COURT: 

13 Catherine O’Hagan Wolfe,

14 Clerk of Court