15-780 Hossen v. Lynch BIA Straus, IJ A205 081 841 

### 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 for**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **23 rd**  **day of May, two thousand sixteen.** 4 5 **PRESENT:** 6 **GUIDO CALABRESI,** 7 **REENA RAGGI,** 8 **CHRISTOPHER F. DRONEY,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **MOFAZZAL HOSSEN,** 13 Petitioner **,** 14 15 **v. 15-780** 16 **NAC** 17 **LORETTA E. LYNCH, UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 **FOR PETITIONER:** Joshua Bardavid, Esq., 22 New York, New York. 23 24 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 25 Assistant Attorney General; Stephen 26 J. Flynn, Assistant Director; Evan 27 P. Schultz, Trial Attorney, Office 28 of Immigration Litigation, United 29 States Department of Justice, 30 Washington, D.C. 312 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review is 3

DENIED. 4 Petitioner Mofazzal Hossen, a native and citizen of 5 Bangladesh, seeks review of a February 19, 2015, decision of 6 the BIA affirming a February 28, 2013, decision of an 7 Immigration Judge (“IJ”) denying Hossen’s application for 8 asylum, withholding of removal, and relief under the Convention 9 Against Torture (“CAT”). In re Mofazzal Hossen, No. A205 081 10 841 (B.I.A. Feb. 19, 2015), aff’gNo. A205 081 841 (Immig. Ct. 11 Hartford Feb. 28, 2013). We assume the parties’ familiarity 12 with the underlying facts and procedural history in this case. 13 Given the circumstances of this case, we have considered 14 both the IJ’s and the BIA’s opinions “for the sake of 15 completeness.” Wangchuck v. Dep’t of Homeland Sec. , 448 F.3d 16 524, 528 (2d Cir. 2006). The applicable standards of review 17 are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin 18 Weng v. Holder , 562 F.3d 510, 513 (2d Cir. 2009). 19 Under the REAL ID Act of 2005, the agency may, in light of 20 “the totality of the cir cumstances,” base an adverse 213 credibility determination on an asylum applicant’s “demeanor, 1 candor, or responsiveness,” the plausibility of his account, 2 and inconsistencies in his statements, “without regard to 3 whether” those determinations go “to the heart of the 4 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia 5 Lin v. Mukasey , 534 F.3d 162, 165 (2d Cir. 2008). Under the 6 “substantial evidence” standard of review, “[w]e defer . . . 7 to an IJ’s credibility determination unless, from the totality 8 of the circumstances, it is plain that no reasonable fact-finder 9 could make such an adverse credibility ruling.” Xiu Xia Lin , 10 534 F.3d at 165-66, 167. 11 Here, the agency’s adverse credibility determination is 12 supported by substantial evidence. First the agency 13 reasonably relied on the inconsistencies among Hossen’s 14 testimony and his credible fear interview, asylum application, 15 and parents’ letters regarding the severity of his injuries 16 after an altercation with members of the rival political party, 17 the Awami League. At the merits hearing, the IJ asked Hossen 18 to describe his injuries. Hossen responded that he “had 19 extreme pains.” The IJ inquired if there was “[a]nything 20 else,” and Hossen said, “They hit me on my head. I got fainted, 214 I mean, and defenseless. And I found myself in my home later.” 1 The IJ confirmed that Hossen was knocked unconscious; Hossen 2 responded, “Yes, I was unconscious when I fell on the ground 3 and I don’t remember anything after that.” Certified Admin. 4 Rec. (“CAR”) 219-20). This account conflicted with his 5 credible fear interview, during which he said he was beaten but 6 “not very much injured.” Id. at 364. Similarly, his asylum 7 application referenced the beating, but omitted being knocked 8 unconscious. See id. at 276. Letters from Hossen’s parents 9 confirmed Hossen’s beating, stated that they “brought him home 10 wounded,” and that he was “under the care of a local doctor,” 11 but likewise omitted any mention that he was knocked 12 unconscious. Id. at 340; see also id. at 342. When confronted 13 with the inconsistencies, Hossen said that the asylum officer 14 asked whether he was “greatly injured” and he answered no 15 because he was “not taken to the hospital,” and that someone 16 else wrote his parents’ letters because they are illiterate. 17 Id. at 222. A reasonable adjudicator would not be compelled 18

to credit these explanations, particularly because as discussed 19 below, the record reflects other inconsistent evidence related 20 to the beating. See Majidi v. Gonzales , 430 F.3d 77, 79-80 (2d 215 Cir. 2005). 1 Hossen argues that his testimony reflects that he may have 2 become unconscious as a result of fainting, rather than being 3 knocked unconscious by his assailant. But irrespective of what 4 caused him to lose consciousness, the agency was entitled to 5 deem the omission suspicious. “A lacuna in an applicant’s 6 testimony or omission in a document submitted to corroborate 7 the applicant’s testimony, like a direct inconsistency between 8 one or more of those forms of evidence, can serve as a proper 9 basis for an adverse credibility determination.” Xiu Xia Lin , 10 534 F.3d at 166 n.3. 11 The agency also cited a letter from Hossen’s neighbor, 12 which conflicted with Hossen’s account of the attack. While 13 Hossen testified that the attack occurred at the headquarters 14 of the Bangladesh National Party (“BNP”), of which he was a 15 member, the neighbor recounted coming home from work the day 16 of the attack to find “hoodlums” of the Awami League beating 17 Hossen’s family at their home and asking that Hossen “be handed 18 over.” CAR 335. Hossen’s explanation for this inconsistency 19 was that he was “unconscious during that time,” and so perhaps 20 “they came to our home, but I don’t know anything about it.” 216 Id. at 223-24. The agency was not compelled to credit this 1 explanation, especially where the letters from Hossen’s parents 2 did not support it. SeeMajidi, 430 F.3d at 79-80. 3 Hossen’s credibility was further undermined by his 4 documentation from the BNP. Specifically, the agency 5 reasonably questioned the letter from the president of the BNP 6 ward to which Hossen belonged. During his testimony, Hossen 7 twice said that the letter was written in early 2008, after he 8 joined the BNP. See CAR 182, 225. But the letter refers to 9 a general election in December 2008 that brought the Awami 10 League to power in 2009 and bears an attestation date of August 11 2012. It also refers to the “Awami Hoodlums” having beaten 12 Hossen, presumably in reference to the December 2008 attack. 13 Id. at 328. Hossen had no explanation for these date 14 discrepancies. See id. at 228-29. 15 The IJ also reasonably deemed two aspects of Hossen’s 16 testimony implausible. “[I]n assessing the credibility of an 17 asylum applicant’s testimony, an IJ is entitled to consider 18 whether the applicant’s story is inherently implausible.” 19 Wensheng Yan v. Mukasey , 509 F.3d 63, 66 (2d Cir. 2007). Such 20 a finding cannot be based on “bald speculation or caprice.” 217 Zhou Yun Zhang v. INS , 386 F.3d 66, 74 (2d Cir. 2004), overruled 1 on other grounds by Shi Liang Li n v. U.S. Dep’t of Justice , 494 2 F.3d 296, 305 (2d Cir. 2007) (en banc) . But one that is based 3 on “speculation that inheres in inference is not ‘bald’ if the 4 inference is made available to the factfinder by record facts, 5 or even a single fact, viewed in the light of common sense and 6 ordinary experience.” Siewe v. Gonzales , 480 F.3d 160, 168-69 7 (2d Cir. 2007). 8 The first implausibility finding related to Hossen’s 9 ascent in the party. At the ag e of 18 or 19, just months after 10 joining the party, Hossen became general secretary of a 11 700-member ward. He clarified that title meant he was the 12 “leader of the branch.” CAR 210. When the IJ asked about his 13 speedy promotion, Hossen explained, “I was very efficient while 14 I worked.” Id. at 213. The IJ reasonably deemed this 15 implausible: common sense suggests that such a large political 16 organization would not select a teenaged newcomer as its leader. 17 See id. at 104. The second implausibility finding related to 18 Hossen’s testimony that he was never given a BNP membership 19 card. In evaluating this testimony, the IJ relied on a document 20 from the Immigration Refugee Board of Canada describing the 218 BNP’s efforts since 2008 to issue standard membership documents 1 to its members. On this basis, the IJ acted within his 2 discretion in deeming it implausible that Hossen would not have 3 a membership card. SeeSiewe, 480 F.3d at 168-69. 4 Hossen’s argument that the ag ency overlooked a newspaper 5 report describing the attack is belied by the record. In fact, 6 the IJ explicitly described the newspaper clipping in his 7 decision, noting that Hossen was asked why the clipping did not 8 reflect the article’s author. CAR 100. 9 These inconsistencies and implausibility findings relate 10 directly to the basis for Hossen’s claims and provide 11 substantial evidence for the agency’s adverse credibility 12 determination. Because Hossen’s applications for asylum, 13 withholding of removal, and CAT relief were all based on the 14 same factual predicate, this determination is dispositive of 15 the entire petition. See Paul v. Gonzales , 444 F.3d 148, 156-57 16 (2d Cir. 2006). 17 For the foregoing reasons, the petition for review is 18 DENIED. As we have completed our rev iew, any stay of removal 19 that the Court previously granted in this petition is VACATED, 20 and any pending motion for a stay of removal in this petition 219 is DISMISSED as moot. Any pending request for oral argument 1 in this petition is DENIED in accordance with Federal Rule of 2 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 3 34.1(b). 4
FOR THE COURT: 5 Catherine O = Hagan Wolfe, Clerk 6 7