18-1726

Abdur v. Garland

BIA

Christensen, IJ

A206 271 630

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.

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

2 for the Second Circuit, held at the Thurgood Marshall 

3 United States Courthouse, 40 Foley Square, in the City of 

New York, on the 14th 4 day of April, two thousand twenty-one.

5

6 PRESENT:

7 JON O. NEWMAN,

8 JOHN M. WALKER, JR.,

9 SUSAN L. CARNEY,

10 Circuit Judges.

11 _____________________________________

12

13 RAHIM ABDUR, AKA ABDUR RAHIM,

14 Petitioner,

15

16 v. 18-1726

17 NAC

18 MERRICK B. GARLAND, UNITED 

19 STATES ATTORNEY GENERAL,

20 Respondent.*

21 _____________________________________

22

23

24 FOR PETITIONER: Khagendra Gharti-Chhetry, Esq.,

25 New York, NY.

26

* Pursuant to Fed. R. App. P. 43(c)(2), Merrick B. Garland is automatically 

substituted for former Attorney General William P. Barr.
2

1 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 

2 General; Russell J. E. Verby, 

3 Senior Litigation Counsel; John D. 

4 Williams, Trial Attorney, Office 

5 of Immigration Litigation, United 

6 States Department of Justice, 

7 Washington, DC.

8 UPON DUE CONSIDERATION of this petition for review of a 

9 Board of Immigration Appeals (“BIA”) decision, it is hereby 

10 ORDERED, ADJUDGED, AND DECREED that the petition for review 

11 is DENIED.

12 Petitioner Rahim Abdur, a native and citizen of 

13 Bangladesh, seeks review of a May 9, 2018 decision of the BIA 

14 affirming a June 6, 2017 decision of an Immigration Judge 

15 (“IJ”) denying Abdur’s application for asylum, withholding of 

16 removal, and relief under the Convention Against Torture 

17 (“CAT”). In re Rahim Abdur, No. A 206 271 630 (B.I.A. May 9, 

18 2018), aff’g No. A 206 271 630 (Immig. Ct. N.Y. City June 6, 

19 2017). We assume the parties’ familiarity with the 

20 underlying facts and procedural history.

21 We have reviewed both the IJ’s and BIA’s decisions “for 

22 the sake of completeness.” Wangchuck v. Dep’t of Homeland 

23 Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable 

24 standards of review are well-established. See 8 U.S.C. 

25 § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 
3

1 (2d Cir. 2018) (reviewing adverse credibility determination 

2 under a substantial evidence standard). The trier of fact 

3 may base its credibility determination on, among other 

4 things, “the consistency between the applicant’s or witness’s 

5 written and oral statements . . . the internal consistency of 

6 each such statement, the consistency of such statements with 

7 other evidence of record . . . or any other relevant factor.” 

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

9 credibility determination unless . . . it is plain that no 

10 reasonable fact-finder could make such an adverse credibility 

11 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 

12 2008); accord Hong Fei Gao, 891 F.3d at 76. 

13 On review, we conclude that substantial evidence supports 

14 the agency’s adverse credibility determination. The agency 

15 reasonably relied on inconsistencies between Abdur’s 

16 statements at his credible fear interview and his subsequent 

17 application and testimony in making its adverse credibility 

18 finding. Although “adverse credibility determinations based 

19 on ‘discrepancies’ with a credible fear interview should be 

20 examined with care,” if the interview record “displays the 

21 hallmarks of reliability, it appropriately can be considered 
4

1 in assessing an alien’s credibility.” Ming Zhang v. Holder, 

2 585 F.3d 715, 725 (2d Cir. 2009) (citing Ramsameachire v. 

3 Ashcroft, 357 F.3d 169, 180 (2d Cir. 2004)). “Hallmarks of 

4 reliability” include whether the interview record includes a 

5 typewritten list of questions and answers, whether the record

6 demonstrates that the applicant understood the questions and 

7 reflects questions about past harm or fear of future harm, 

8 and whether it was conducted with an interpreter. Id. 

9 The record of Abdur’s credible fear interview was 

10 sufficiently reliable. The “hallmarks of reliability” listed 

11 in Ming Zhang are present here: the interview was conducted

12 in Bengali with an interpreter; it is memorialized in a 

13 question-and-answer format; the questions posed were designed 

14 to elicit details of an asylum claim; and Abdur’s responses 

15 indicated that he generally understood the questions posed to 

16 him. See id. 

17 Abdur argues that the record is not reliable because he 

18 did not understand the questions posed and that he was 

19 confused, stressed, and reluctant to open up to officials 

20 because he was a victim of human rights abuses. At the 

21 interview, however, Abdur stated that he understood the 
5

1 interpreter. Further, the interview record does not reflect 

2 that he was reluctant to reveal information, and the asylum 

3 officer informed him that what he said would be kept 

4 confidential. Moreover, although Abdur gave confusing 

5 responses, the agency was not required to interpret these 

6 responses as reflecting a lack of comprehension rather than 

7 as an indication that he was fabricating a claim. See Siewe 

8 v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“[W]here there 

9 are two permissible views of the evidence, the fact finder’s 

10 choice between them cannot be clearly erroneous.”). 

11 Additionally, Abdur did not challenge the asylum officer’s

12 summary of his statements at the end of the interview or pose 

13 any questions about the summary when asked. Finally, at the 

14 hearing, his counsel did not object when the IJ admitted the 

15 interview record into evidence. 

16 Because the agency was entitled to rely on the interview 

17 record, substantial evidence supports its adverse credibility 

18 determination based on the inconsistencies between Abdur’s 

19 initial statements in the interview and his subsequent claim.

20 See 8 U.S.C. § 1158(b)(1)(B)(iii). First, at the interview 

21 Abdur stated that he received threatening calls but was 
6

1 otherwise not harmed. In his application and testimony, 

2 however, he alleged that he was the subject of two assaults 

3 by members of a rival political party. Second, during the 

4 interview, Abdur stated that he had not been harmed or 

5 threatened before January 9, 2012. In his application and 

6 testimony, however, he identified the first assault as having 

7 occurred in December 2011. Third, Abdur’s testimony was 

8 inconsistent with his credible fear interview regarding 

9 whether he sought assistance from the police. The IJ was not 

10 required to accept Abdur’s explanation that he did not 

11 understand the interview questions, because Abdur stated 

12 during the interview that he understood the interpreter. See 

13 Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) 

14 (“A petitioner must do more than offer a plausible 

15 explanation for his inconsistent statements to secure relief; 

16 he must demonstrate that a reasonable fact-finder would be 

17 compelled to credit his testimony.” (internal quotation marks 

18 and citations omitted)). These inconsistencies relate

19 directly to the alleged incidents of past persecution and 

20 thus provide substantial evidence for the adverse credibility 

21 determination. See Xian Tuan Ye v. Dep’t of Homeland Sec., 
7

1 446 F.3d 289, 295 (2d Cir. 2006) (holding that “a material 

2 inconsistency in an aspect of [the applicant]’s story that 

3 served as an example of the very persecution from which he 

4 sought asylum” can provide substantial evidence for an 

5 adverse credibility ruling (quoting Majidi, 430 F.3d at 80)).

6 Finally, the agency reasonably determined that Abdur did 

7 not rehabilitate his credibility with reliable corroborating 

8 evidence. See Biao Yang v. Gonzales, 496 F.3d 268, 273 

9 (2d Cir. 2007) (“An applicant’s failure to corroborate his 

10 . . . testimony may bear on credibility, because the absence 

11 of corroboration in general makes an applicant unable to 

12 rehabilitate testimony that has already been called into 

13 question.”). The IJ did not err in giving diminished weight 

14 to affidavits and letters presented by Abdur from individuals 

15 in Bangladesh who were not subject to cross-examination. See 

16 Y.C. v. Holder, 741 F.3d 324, 332, 334 (2d Cir. 2013) (holding 

17 that “[w]e generally defer to the agency’s evaluation of the 

18 weight to be afforded an applicant’s documentary evidence”

19 and upholding BIA’s decision not to credit letter from 

20 applicant’s spouse); Matter of H-L-H- & Z-Y-Z-, 25 I. & N. 

21 Dec. 209, 215 (B.I.A. 2010) (giving diminished weight to 
8

1 letters from friends and relatives because they were from 

2 interested persons not subject to cross-examination), rev’d 

3 on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130 

4 (2d Cir. 2012).

5 In light of the inconsistencies relating to Abdur’s

6 alleged instances of past persecution and the lack of reliable 

7 corroboration, we conclude that substantial evidence supports 

8 the agency’s adverse credibility determination. See Xiu Xia 

9 Lin, 534 F.3d at 167. Because they all rest on the same 

10 factual predicate, the adverse credibility determination is 

11 dispositive of Abdur’s requests for asylum, withholding of 

12 removal, and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 

13 156–57 (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