18-141 Hossain v. Barr BIA Ruehle, IJ A206 370 211 

### 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 United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 21 st**  **day of November, two thousand nineteen.** 4 5 **PRESENT:** 6 **JOSÉ A. CABRANES,** 7 **RAYMOND J. LOHIER, JR.,** 8 **MICHAEL H. PARK,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **SHAHADAT HOSSAIN,** 13 Petitioner **,** 14 15 **v. 18-141** 16 **NAC** 17 **WILLIAM P. BARR, UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Stephen K. Tills, Esq., Orchard 23 Park, NY. 24 25 **FOR RESPONDENT:** Joseph H. Hunt, Assistant 26 Attorney General; Andrew N. 27 O’Malley, Senior Litigation 28 Counsel; Sunah Lee, Trial 29 Attorney, Office of Immigration 30 Litigation, United States 31 Department of Justice, Washington, 32 DC. 332 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 3 is DENIED. 4 Petitioner Shahadat Hossain, a native and citizen of 5 Bangladesh, seeks review of a December 27, 2017, decision of 6 the BIA affirming an April 27, 2017, decision of an 7 Immigration Judge (“IJ”) denying his application for asylum, 8 withholding of removal, and relief under the Convention 9 Against Torture (“CAT”). In re Hossain, No. A 206 370 211 10 (B.I.A. Dec. 27, 2017), aff’g No. A 206 370 211 (Immig. Ct. 11 Buffalo Apr. 27, 2017). We assume the parties’ familiarity 12 with the underlying facts and procedural history in this case. 13 As an initial matter, Hossain’s argument that the agency 14 lacked jurisdiction over his removal proceedings because his 15 notice to appear did not include a hearing date or time is 16 foreclosed by Banegas Gomez v. Barr, 922 F.3d 101 (2d Cir. 17 2019). Id. at 110–12. 18 Turning to the adverse credibility determination, we have 19 reviewed the IJ’s decision as modified by the BIA. See Xue 20 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d 21 Cir. 2005). The applicable standards of review are well 223 established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. 1 Sessions , 891 F.3d 67, 76 (2d Cir. 2018) (reviewing adverse 2 credibility determination under a substantial evidence 3 standard). “Considering the totali ty of the circumstances, 4 and all relevant factors, a trier of fact may base a 5 credibility determination on . . . the consistency between 6 the applicant’s or witness’s written and oral 7 statements . . ., the internal consistency of each such 8 statement, [and] the consistency of such statements with 9 other evidence of record.” 8 U.S.C. § 1158(b)(1)(B)(iii). 10 “We defer . . . to an IJ’s credibility determination 11 unless . . . it is plain that no reasonable fact-finder could 12 make such an adverse credibility ruling.” Xiu Xia Lin v. 13 Mukasey , 534 F.3d 162, 167 (2d Cir. 2008) (per curiam); accord 14 Hong Fei Gao , 891 F.3d at 76. Substantial evidence supports 15 the agency’s determination that Hossain was not credible as 16 to his claim that Awami League members assaulted and 17 threatened to kill him on account of his membership in the 18 Bangladesh Nationalist Party. 19 The agency reasonably relied on inconsistencies between 20 Hossain’s testimony and his documentary evidence. Hossain 21 repeatedly testified that Awami League members assaulted him 224 at 8:00 p.m. as he returned from a religious holiday gathering 1 in August 2013. He testified that he sustained serious 2 injuries and was taken to a hospital, from which he was 3 discharged without records, and then to another hospital 4 where he remained for two days, receiving documentation of 5 his injuries the day of discharge. He submitted what he 6 claimed were original records of his treatment. 7 However, at his hearing, when confronted with his own 8 submission of records from the first hospital stating he was 9 admitted at 6:00 p.m., two hours before the alleged assault, 10 Hossain had no explanation other than that the record should 11 have reflected an admission at 9:00 p.m. He also was unable 12 to provide a clear explanation as to why another date more 13 than a year after treatment appeared on these records. 14 Hossain later testified that the document reflected the date 15 it was notarized, before the doctor signed the records. See 16 Majidi v. Gonzales , 430 F.3d 77, 80 (2d Cir. 2005) (“A 17 petitioner must do more than offer a plausible explanation 18 for his inconsistent statements to secure relief; he must 19 demonstrate that a reasonable fact-finder would be compelled 20 to credit his testimony.” (internal quotation marks 21 omitted)). To the extent that he first stated that he had 225 no records from this hospital, his lack of familiarity with 1 his own evidence further undermined his credibility. 2 Given that these inconsistencies relate directly to the 3 sole incident of past harm and undermine the reliability of 4 the records, the totality of the circumstances supports the 5 agency’s adverse credibility determination. See 8 U.S.C. 6

§ 1158(b)(1)(B)(iii); Xian Tuan Ye v. Dep’t of Homeland Sec. , 7 446 F.3d 289, 295 (2d Cir. 2006) (per curiam) (holding that 8 material inconsistency regarding basis of applicant’s asylum 9 claim is substantial evidence f or adverse credibility 10 determination). That determination is dispositive of asylum, 11 withholding of removal, and CAT relief because all three 12 claims are based on the same factual predicate. See Paul v. 13 Gonzales , 444 F.3d 148, 156-57 (2d Cir. 2006). 14 For the foregoing reasons, the petition for review is 15 DENIED. All pending motions and applications are DENIED and 16 stays VACATED. 17

FOR THE COURT: 18 Catherine O’Hagan Wolfe, 19 Clerk of Court 20