16

- 49 Ullah v. Garland BIA Gordon

- Uruakpa , IJ A 087 783 561 

### 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 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 t**  **he Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 2**  **0 t**  **h d**  **a y of**  **S e**  **p t**  **e m**  **b e**  **r , two thousand**  **twenty**
  4 ** two**

**.** 5 6 **PRESENT:** 7 **GUIDO CALABRESI ,**  8 **MICHAEL H. PARK ,**  9 **ALISON J. NATHAN ,**  10 **Circuit Judges.** 11

**_____________________________________** 12 13 **NAEEM ULLAH ,**  14 **Petitioner ,**  15 16
**v. 16** 

**- 49**  17 **NAC** 18 **MERRICK B. GARLAND ,**  **UNITED** 19 **STATES ATTORNEY GENERAL,** 20 **Respondent**

**.** 21

**_____________________________________** 22 23 **FOR PETITIONER :**  Visuvanathan Rudrakumaran , Esq. , 24 New York , NY

. 25 26 **FOR RESPONDENT:** Brian M. Boynton , Acting A ssistant 27 Attorney General ; Anthony C. 282 Payne , Assistant Director ; J effery 1 R. Leist , Senior Litigation 2 Counsel , Office of Immigration 3 Litigation, United States 4 Department of Justice, Washington, 5 D C. 6

UPON DUE CONSIDERATION of th is petition for review of a 7
Board of Immigration Appeals (“BIA”) decision, it is hereby 8
ORDERED, ADJUDGED, AND DECREED that the petitio n for review 9

is DENIED

. 10

Petitioner Naeem Ullah , a native and citizen o f Pakistan , 11

seeks review of a December 9, 2015 decision of the BIA 12
affirming a July 10 , 201 4 decision of an Immigration Judge 13
(“IJ”) denying Ullah’s application for asylum , withholding of 14

removal , and protection under the Convention Against Torture 15

(“CAT”)

. In re Naeem Ullah , No. A 087 783 561 (B.I.A. Dec. 16

9 , 20 15 ), aff’g No. A 087 783 561 (Immig. Ct. N.Y. C. July 1 0 , 17

20 14 ). We assume the parties’ familiarity with the 18
underlying facts and procedural history

. 19

We have reviewed the IJ’s decision as supplemented by 20

the BIA. See Xian Tuan Ye v. DHS , 446 F.3d 289, 293, 296 (2d 21

Cir. 2006). The applicable standards of review are well 22

established. See 8 U.S.C. § 1252(b)(4)(B) (“ t he 23
administrative findings of fact are conclusive unless any 243 reasonable adjudicator would be compelled to conclude to the 1
contrary”) ; Hong Fei Gao v. Sessions , 891 F.3d 67, 76 (2d 2
Cir. 2018) (reviewing adverse credibility determination for 3

substantial evidenc e); Pierre v. Holder , 588 F.3d 767, 772 4

(2d Cir. 2009) ( providing that constitutional claims and 5
questions of law are reviewed de novo). 6
“Considering the totality of the circumstances, and all 7
relevant factors, a trier of fact may base a credibility 8

determination on the

. . . consistency between the applicant’s 9

or witness’s written and oral statements

. . . , the internal 10
consistency of each such statement, [and] the consistency of 11

such statements with other evidence of record

. . . without 12
regard to whether an inconsistency, inaccuracy, or falsehood 13
goes to the heart of the applicant’s claim, or any other 14

rel evant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer 15

. . . to an IJ’s credibility determination unless

. . . it is 16
plain that no reasonable fact

- finder could make such an 17
adverse credibility ruling.” Xiu Xia Lin v. Mukasey , 534 18
F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao , 891 F.3d 19

at 76. 204 Substantial evidence supports the adverse credibility 1

determination here

. Ullah alleged that members of an 2
extremist Islamic group killed his father, sister, and 3

brother

- in

- law, and later shot him in the leg on account of 4
his family belonging to the Ahmadi sect of Islam. The IJ 5
reasonably relied on inconsistencies about Ullah’s alleged 6
shooting, including when it occurred, why he was in Pakistan 7
at that time, why his passport did not reflect that he was in 8
Pakistan at the time, and who reported the shooting to the 9
police. See 8 U.S.C § 1158(b)(1)(B)(iii). Ullah failed to 10
rehabilitate this testimony with relia ble corroboration. * 11
See Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 2007) 12
(“An applicant’s failure to corroborate his .

. . testimony 13
may bear on credibility, because the absence of corroboration 14

* Ullah submitted a police report related to the shooting and a handwritten discharge slip from a Pakistani hospital , which would have corroborated his presence in Pakistan at the time of the shooting and that he received medical attention. But the agency was not required to credit these documents over the passport, particularly given Ullah’s inconsistent testimony about who reported the incident to the police. See Y.C. v. Holder , 741 F.3d 324, 332 (2d Cir. 2013) ( “We generally defer to the agency’s evaluation of the weight to be afforded an applicant’s documentary evidence

. ”).5 in general makes an applicant unable to rehabilitate 1
testimony that has already been called into question.”). 2
In addition, Ullah’s asylum application and testimony 3
were inconsistent with an earlier visa application as to 4
whether he had served in the military in Pakistan and as to 5

what countries he had previously travelled . He also omitted 6
an arrest in the United States from his asylum application. 7

See Xiu Xia Lin , 534 F.3d at 167 ( explaining that the agency 8
“may rely on any inconsistency

. . . as long as the ‘totality 9

of circumstances’ establishes that an asylum applicant is not 10

credible”)

. T he IJ did not err in relying on the omission 11
because the application form instructs the applicant to list 12

any arrests , and Ullah’s contradictory explanation s

— i.e. , 13

that the arrest occ urred after he filed the application and 14
that his attorney advised him that the arrest was irrelevant 15
because the charges were dismissed

— do not resolve the 16
inconsistency. See Majidi v. Gonzales , 430 F.3d 77, 80 (2d 17
Cir. 2005) (“A petitioner must do more than offer a plausible 18
explanation for his inconsistent statements to secure relief; 19

he must demonstrate that a reasonable fact

- finder would be 20
compelled to credit his testimony.” ( cleaned up )). Ullah 216 also argues that the agency should not have relied on the 1
inconsistencies because he has memory issues as a result of 2
a stroke. The agency was not required to accept this 3
explanation because he was able to testify in detail, he 4
complained of memory problems only when confronted with an 5
inconsistency, and the issue with the visa application and 6
the omission of his arrest from his asylum application 7
predate d the stroke. Id

. 8
The discrepancies between Ullah’s statement, testimony, 9
and the documentary e vidence, as well as the lack of other 10
reliable corroboration, provide substantial evidence for the 11
adverse credibility determination. See 8 U.S.C. 12

§ 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 F.3d at 166

– 67; Biao 13

Yang , 496 F.3d at 273; see also Likai Gao v. Bar r , 968 F.3d 14
137, 145 n.8 (2d Cir. 2020) (“[E]ven a single inconsistency 15
might preclude an alien from showing that an IJ was compelled 16

to find him credible. Multiple inconsistencies would so 17
preclude even more forcefully.”). This determination is 18
dispositive of asylum, withholding of removal, and CAT r elief 19

because all three forms of relief are based on the same 207 discredited factual predicate. See Paul v. Gonzales , 444 1
F.3d 148, 156

– 57 (2d Cir. 2006). 2
Finally, we are not persuaded by Ullah ’s argument that 3
the agency deprived him of due process by faili ng to hold a 4
competency hearing or relying on credibility concerns without 5
adequately considering the effect of his stroke on his memory

. 6
First, Ullah did not request a competency hearing or exhaust 7
a due process argument before the agency. See Lin Zhong v. 8
U.S. Dep’t of Justice , 480 F.3d 104, 123 (2d Cir. 2007) 9

(“ [U] sually .

. . issues not raised to the BIA will not be 10
examined by the reviewing court

. ”). Second, in any event , 11

Ullah has not demonstrated a due proce ss violation . T o state 12
a due process claim, Ullah had to show that he did not have 13
a “full and fair opportunity to present [his] claims

. ” Li 14
Hua Lin v. U.S. Dep’t of Justice , 453 F.3d 99, 104 (2d Cir. 15
2006). He has not shown he was deprived of such an 16
opportunity as he declined the IJ’s offer of a continuance, 17

he decided to proceed in consultation with counsel, and he 18
was given an opportunity to present additional evidence after 19
the hearing

. Id. ; Matter of M

- A

- M

- , 25 I. & N. Dec. 474, 479 20
(B.I.A. 2011) (“[A] lack of competency in civil immigration 218 proceedings does not mean that the hearing cannot go forward; 1
rather, procedural fairness is required.”). 2
For the foregoing reasons, the petition for review is 3

DENIED

. All pending motions and applications are DENIED and 4

stays VACATED

. 5

FOR THE COURT: 6 Catherine O ’ Hagan Wolfe , 7 Clerk of Court 8