21

- 6331 Hossain v. Garland BIA Renner , IJ A 208 177 603



### 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 A NY 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 th e 27 th da y of September , two thousa nd 3 twenty

- t hree

. 4 5 PRESENT: 6 DENNIS JACOBS, 7 GUIDO CALABRESI, 8 RAYMOND J. LOHIER, JR., 9 Circuit Judges. 10

_____________________________________ 11 12 IMTIAGE HOSSAIN , 13 Petitioner , 14 15

v. 21

- 6331 16 NAC 17 MERRICK B. GARLAND , UNITED 18 STATES ATTORNEY GENERAL, 19 Respondent

. 20

_____________________________________ 21 22 FOR PETITIONER : Khagendra Gharti

- Chhetry, Esq. , New York , 23 N Y

. 242 FOR RESPONDENT: Brian Boynton , Principal Deputy Assistant 1 Attorney General ; Paul Fiorino , Senior 2 Litigation Counsel ; Kevin J. Conway , Trial 3 Attorney , Office of Immigration Litigation, 4 United States Department of Justice, 5 Washington, D C. 6 UPON DUE CONSIDERATION of this petition for review of a Board of 7
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 8

DECREED that the petitio n for review is DENIED

. 9

Petitioner Imtiage Hossain , a native and citizen of Bangladesh , seeks review 10

of a May 7 , 2021 , decision of the BIA affirming a July 31 , 2018 , decision of an 11
Immigration Judge (“IJ”) denying his application for asylum, withholding of 12

removal , and relief under the Convention Against Torture (“CAT”)

. In re Imtiage 13

Hossain , No. A 208 177 603 (B.I.A. May 7 , 2021 ), aff’g No. A 208 177 603 (Immig. Ct. 14
N.Y. City July 31 , 2018 ). We assume the parties’ familiarity with the underlying 15
facts and procedural history. 16

Under the circumstances, we have considered the IJ’s decision as modified 17
by the BIA , i.e., minus the IJ’s burden findings that the BIA did not reach

. See Xue 18
Hong Yang v. U.S. Dep’t of Just. , 426 F.3d 520, 522 (2d Cir. 2005). The applicable 19

standards of review are well establis hed. See 8 U.S.C. § 1252(b)(4)(B) (“[T]he 20
administrative findings of fact are conclusive unless any reasonable adjudicator 21
would be compelled to conclude to the contrary.”); Hong Fei Gao v. Sessions , 891 223 F.3d 67, 76 (2d Cir. 2018) (reviewing an adverse cr edibility determination “ under 1

the substantial evidence standard ” ). “Considering the totality of the 2
circumstances, and all relevant factors, a trier of fact may base a credibility 3

determination on the demeanor, candor, or responsiveness of the applicant or 4
witness, the inherent plausibility of the applicant ’ s or witness ’ s account, the 5
consistency between the applicant’s or witness’s written and oral statements 6
(whenever made and whether or not under oath, and considering the 7

circumstances under which the statements were made), the internal consistency of 8
each such statement, [and] the consistency of such statements with other evidence 9

of record

. . . , and any inaccuracies or falsehoods in such statements, without 10
regard to whether an inconsistency, in accuracy, or falsehood goes to the heart of 11
the applicant's claim, or any other relevant factor .” 8 U.S.C. § 1158(b)(1)(B)(iii). 12
“We defer . . . to an IJ’s credibility determination unless, from the totality of the 13
circumstances, it is plain that no reas onable fact

- finder could make such an 14
adverse credibility ruling.” Xiu Xia Lin v. Mukasey , 534 F.3d 162, 167 (2d Cir. 15

2008 )

. 16

“W e review de novo questions of law and the application of law to fact.” 17
Hong Fei Gao, 891 F.3d at 76 (internal citation omitted )

. Where we find legal error, 18
we thus “remand to the agency for additional explanation or investigation.” 194 Twum v. INS , 411 F.3d 54, 61 (2d Cir. 2005) (quoting INS v. Ventura , 537 U.S. 12, 16 1
(2002) (per curiam) )

. “To hold otherwise would be to usurp the agency’s role, 2
entrusted by co ngress, to assess and w e igh the evidence and, instead, substitute 3
the court’s judgment as to such evidence for that of the agency.” Ojo v. Garland , 4
25 F.4th 152, 171 (2d Cir. 2022). We may instead affirm “because it is clear that 5
the agency would adhere to its prior decision in the absence of error

. ” Xiao Ji Chen 6
v. U.S. Dep't of Just. , 471 F.3d 315 , 339 (2d Cir. 2006)

. 7

Here, the agency did not properly assess whether the records of Hossain’s 8

border a nd credible fear interviews were sufficiently reliable before relying on 9

them. Nonetheless , there is sufficient other evidence that supports the agency’s 10

determination that Hossain was not credible as to his claim that members of the 11
Awami League attacked him on account of his involvement with the Bangladesh 12

Jati o tabadi Jubo Dal (“BJJD”) , which is the youth wing of the Bangladesh 13
Nationalist Party (“BNP”)

. Thus, we affirm the agency’s finding because we can 14
“confidently predict that the agency would reach the same decision absent the 15

errors that were made , ” Xiao Ji Chen , 471 F.3d at 339 (internal citations and 16
quotations omitted) , and hence that remand would be futile. 17

Hossain made inconsistent statements regarding how he entered the United 18

States and how his attackers harmed him during both of his alleged attacks

. See 195 8 U.S.C. § 1158(b)(1)(B)(iii); Likai Gao v. Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020) 1
(“[E]ven a single inconsistency might preclude an alien from showing that an IJ 2
was compelled to find him credible. Multiple inconsistencies would so preclude 3
even more forcefully.”). Hossain did not compellingly explain these 4

inconsistencies but rather changed his testimony thereby creating additional 5

record inconsistencies

. S ee Majidi v. Gonzales , 430 F.3d 77, 80 (2d Cir. 2005) (“A 6
petitioner must do more than offer a plausible explanation for his inconsistent 7

statements to secure relief; he must demonstrate t hat a reasonable fact

- finder 8

would be compelled to credit his testimony.” (quotation marks omitted))

. 9

Moreover, Hossain was unable to identify the president of the BJJD who 10
purportedly wrote a corroborating letter that Hossain submitted to the IJ

. See 11

8 U.S.C. § 1158(b)(1)(B)(iii). The agency also reasonably noted the implausibility 12
of Hossain’s testimony that he , as a low

- level party member, was threatened three 13
times and attacked twice while the president of the youth group and his 14
politically

- ac tive family members have remained unharmed in Bangladesh

. S ee 15

8 U.S.C. § 1158(b)(1)(B)(iii); Siewe v. Gonzales , 480 F.3d 160, 169 (2d Cir. 2007) 16
(recognizing that adverse credibility determination may be based on inherent 17
implausibility if the finding “is tethered to the evidentiary record” or “record facts 186 . . . viewed in the light of common sense and ordinary experience”). 1
Hossain’s inconsistent statements and other implausibilities in his 2
testimony render his account not credible in critical areas. Thus, this is a case in 3

which remand is not required because “overwhelming evidence supporting the 4
administrative adjudicator’s findings makes it clear that the same decision would 5

have been reached in the absence of the errors.” Cao He Lin v. U.S. Dep ’ t. of Just. , 6
428 F.3d 391, 402 (2d Cir. 2 005). T he adverse credibility determination i s 7
dispositive of asylum, withholding of removal, and CAT relief

. See Paul v. 8

Gonzales , 444 F.3d 148, 15 6

– 5 7 (2d Cir. 2006). 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 15 16

* Given this substantial evidence, we find i t unnecessary to reach the IJ’s additional inconsistency findings or the IJ’s conclusion that Hossain failed to corroborate his identity. See INS v. Bagamasbad , 429 U.S. 24, 25 (1976) (“As a general rule courts and agencies are not required to make finding s on issues the decision of which is unnecessary to the results they reach.”).