18

- 1726 Abdur v. Garland BIA Christensen , IJ A 206 271 630 

### 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 APP**  **ENDIX 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 a**  **t the Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 14**  **th da**  **y of April**  **, two thousand twenty** 
**- one** 
**.** 4 5 **PRESENT:** 6 **JON O. NEWMAN ,**  7 **JOHN M. WALKER, JR. ,**  8 **SUSAN L. CARNEY ,**  9 **Circuit Judges.** 10

**_____________________________________** 11 12 **RAHIM ABDUR ,**  **A K** 

**A A**  **B D**  **U R**  **R A** 

**H I**  **M ,**  13 **Petitioner ,**  14 15
**v. 18** 

**- 1726**  16 **NAC** 17 **MERRICK B. GARLAND ,**  **UNITED** 18 **STATES ATTORNEY GENERAL**  **,** 19 **Respondent**

**.** ***** 20

**_____________________________________** 21 22 23 **FOR PETITIONER :**  Khagendra Gharti

- Chhetry , Esq., 24 New York , NY

. 25 26

* Pursuant to Fed. R. App. P. 43(c)(2), Merrick B. Garland is automatically substituted for former Attorney General William P. Barr.2 **FOR RESPONDENT:** Joseph H. Hunt , Assistant Attorney 1 General ; Russell J. E. Verby , 2 Senior Litigation Counsel ; John D. 3 Williams , Trial Attorney, Office 4 of Immigration Litigation, United 5 States Department of Justice, 6 Washington, D C. 7
UPON DUE CONSIDERATION of this petition for review of a 8
Board of Immigration Appeals (“BIA”) decision, it is hereby 9
ORDERED, ADJUDGED, AND DECREED that the petitio n for review 10

is DENIED

. 11

Petitioner Rahim Abdur , a native and citizen of 12
Bangladesh , seeks review of a May 9, 2018 decision of the BIA 13
affirming a June 6, 2017 decision of an Immigration Judge 14
(“IJ”) denying Abdur’s application for asylum, withholding of 15
removal, and relief under the Convention Against Torture 16

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

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

2017 ). We assume the parties’ familiarity with the 19
underlying facts and procedural history. 20

W e have review ed both the IJ’s and BIA’s decisions “for 21
the sake of completeness.” Wangchuck v. Dep’t of Homeland 22

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

standards of review are well

- established. See 8 U.S.C. 24

§ 1252(b)(4)(B); Hong Fei Gao v. Sessions , 891 F.3d 67, 76 253 (2d Cir. 2018) ( reviewing adverse credibility determination 1
under a substantial evidence standard)

. The trier of fact 2
may base its credibility determination on, among other 3
things, “the c onsistency between the applicant’s or witness’s 4
written and oral statements . . . the internal consistency of 5
each such statement, the consistency of such statements with 6

other evidence of record

. . . or any other relevant factor.” 7

8 U.S.C. § 1158(b)(1)( B)(iii). “ We defer . . . to an IJ’s 8
credibility determination unless . . . it is plain that no 9

reasonable fact

- finder could make such an adverse credibility 10
ruling.” Xiu Xia Lin v. Mukasey , 534 F.3d 162, 167 (2d Cir. 11

2008); accord Hong Fei Gao , 891 F.3d at 76. 12
On review, we conclude that s ubstantial evidence supports 13
the agency’s adverse credibility determination. The agency 14
reasonably relied on inconsistencies between Abdur’s 15
statements at his credible fear interview and his subsequent 16
application an d testimony in making its adverse credibility 17
finding

. Although “ a dverse credibility determinations based 18
on ‘discrepancies’ with a credible fear interview should be 19

examined with care , ” if the interview record “ displays the 20
hallmarks of reliability, it appropriately can be considered 214 in assessing an alien’s credibility.” Ming Zhang v. Holder , 1
585 F.3d 715, 725 (2d Cir. 2009) (citing Ramsameachire v. 2

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

rel iability” include whether the interview record includes a 4
typewritten list of questions and answers, whether the record 5
demonstrates that the applicant understood the questions and 6
reflects questions about past harm or fear of future harm, 7

and whether it w as conducted with an interpreter. Id. 8

The record of Abdur’s credible fear interview was 9
sufficiently reliable. The “hallmarks of reliability” listed 10

in Ming Zhang are present here: the interview was conducted 11
in Bengali with an interpreter; it is memo rialized in a 12
question

- and

- answer format; the questions posed were designed 13
to elicit details of an asylum claim; and Abdur’s responses 14
indicated that he generally understood the questions posed to 15

him

. See i d

. 16
Abdur argues that the reco rd is not reliable because he 17
did not understand the questions posed and that he was 18

confused, s tress ed , and reluctant to open up to officials 19
because he was a victim of human rights abuses. A t the 20
interview, however, Abdur stated that he understood the 215 i nterpreter

. Further, the interview record does not reflect 1

that he was reluctant to reveal information , and the asylum 2
officer informed him that what he said would be kept 3

confidential. Moreover, a lthough Abdur gave confusing 4

responses , the agency was not required to interpret th ese 5

responses as reflecting a lack of comprehension rather than 6

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

v. Gonzales , 480 F.3d 160, 167 (2d Cir. 2007) (“[W]here there 8
are two permissible views of the evidence, t he fact finder’s 9
choice between them cannot be clearly erroneous

. ”). 10
Additionally, Abdur did not challenge the asylum officer ’s 11

summar y of his statements at the end of the interview or pose 12
any questions about the summary when asked

. Finally, at the 13
hearing, his counsel did not object when the IJ admitt ed the 14

interview record into evidence. 15
Because the agency was entitled to rely on the interview 16
record, substantial evidence supports its adverse credibility 17

determination based on the inconsi stencies between Abdur’s 18

initial statements in the interview and his subsequent claim. 19

See 8 U.S.C. § 1158(b)(1)(B)(iii). First, at the interview 20
Abdur stated that he received threatening calls but was 216 otherwise not harmed. I n his application and testimo ny , 1

however , he alleged that he was the subject of two assaults 2
by members of a rival political party

. Second, during the 3
interview, Abdur stated that he had not been harmed or 4
threatened before January 9, 2012

. In his application and 5
testimony , however, he identified the first assault as having 6

occurr ed in December 2011. Third, Abdur’s testimony was 7
inconsistent with his credible fear interview regarding 8
whether he sought assistance from the police. The IJ was not 9
required to accept Abdur’s exp lanation that he did not 10
understand the interview questions , b ecause Abdur stated 11
during the interview that he understood the interpreter. See 12
Majidi v. Gonzales , 430 F.3d 77, 80 (2d Cir. 2005) 13

(“A petitioner must do more than offer a plausible 14
explanatio n for his inconsistent statements to secure relief; 15

he must demonstrate that a reasonable fact

- finder would be 16
compelled to credit his testimony.” (internal quotation marks 17
and citations omitted)). The se inconsistencies relate 18
directly to the alleged incidents of past persecution and 19

thus provide substantial evidence for the adverse credibility 20

determination. See Xian Tuan Ye v. Dep’t of Homeland Sec. , 217 446 F.3d 289, 295 (2d Cir. 2006) (holding that “a material 1
inconsistency in an aspect of [th e applicant]’s story that 2
served as an example of the very persecution from which he 3
sought asylum” can provide substantial evidence for an 4
adverse credibility ruling (quoting Majidi , 430 F.3d at 8 0 )). 5
Finally, the agency reasonably determined that Abdur did 6
not rehabilitate his credibility with reliable corroborating 7

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

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

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

of corroboration in general makes an applicant unable to 11
rehabilitate testimony that has already been called into 12
question

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

to affidavits and letters presented by Abdur from individuals 14
in Bangladesh who were not subject to cross

- examination. S ee 15

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

that “[w] e generally defer to the agency’s evaluation of the 17
weight to be afforded an applicant’s documentary evidence” 18
and upholding BIA’s decision not to credit letter from 19
applicant’s spouse ); Matter of H

- L

- H

- & Z

- Y

- Z

- , 25 I. & N. 20
Dec. 209, 215 (B

. I

. A

. 2010) (giving diminished weight to 218 letters from friends and relatives because they were from 1

interested persons not subject to cross

- examination), rev’d 2
on other grounds by Hui Lin Huang v. Holder , 677 F.3d 130 3

(2d Cir. 2012). 4
In light of the inconsistencies relating to Abdur’s 5
alleged instances of past persecution and the lack of reliable 6
corroboration, we conclude that substantial evidence supports 7

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

Lin , 534 F.3d at 167. Because they all rest on the same 9
factual predicate, the adverse credibility determination is 10
dispositive of Abdur’s requests for asylum, withholding of 11
removal, and CAT relief. See Paul v. Gonzales , 444 F.3d 148, 12

156

– 57 (2d Cir. 2006). 13
For the foregoing reasons, the petition for review is 14

DENIED

. All pending motions and applications are DENIED and 15

stays VACATED. 16

FOR THE COURT: 17 Catherine O ’ Hagan Wolfe , 18 Clerk of Court 19