19-3770

Islam v. Garland

BIA

Christensen, IJ

A206 910 053

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 6th 4 day of January, two thousand twenty5 two.

6

7 PRESENT:

8 DENNIS JACOBS,

9 DENNY CHIN,

10 MICHAEL H. PARK,

11 Circuit Judges.

12 _____________________________________

13

14 MOHAMMAD Z. ISLAM,

15 Petitioner,

16

17 v. 19-3770

18 NAC

19 MERRICK B. GARLAND, UNITED 

20 STATES ATTORNEY GENERAL,

21 Respondent.

22 _____________________________________

23

24 FOR PETITIONER: Thomas V. Massucci, Esq., New 

25 York, NY.

26

27 FOR RESPONDENT: Ethan P. Davis, Acting Assistant 

28 Attorney General; John S. Hogan, 
2

1 Assistant Director; Deitz P. 

2 Lefort, Trial Attorney, Office of 

3 Immigration Litigation, United 

4 States Department of Justice, 

5 Washington, DC.

6

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 petition for review 

10 is DENIED.

11 Petitioner Mohammad Z. Islam, a native and citizen of 

12 Bangladesh, seeks review of a November 6, 2019 decision of 

13 the BIA affirming a February 28, 2018 decision of an 

14 Immigration Judge (“IJ”) denying Islam’s motion to suppress 

15 and application for asylum, withholding of removal, and 

16 relief under the Convention Against Torture (“CAT”). In re 

17 Mohammad Z. Islam, No. A206 910 053 (B.I.A. Nov. 6, 2019), 

18 aff’g No. A206 910 053 (Immig. Ct. N.Y.C. Feb. 28, 2018). We 

19 assume the parties’ familiarity with the underlying facts and 

20 procedural history.

21 We have considered both the IJ’s and the BIA’s opinions.

22 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d 

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

24 established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. 

25 Sessions, 891 F.3d 67, 76 (2d Cir. 2018). Because Islam 
3

1 explicitly abandons any challenge to the agency’s denial of 

2 his motion to suppress, we consider only the adverse 

3 credibility determination. 

4 “Considering the totality of the circumstances, and all 

5 relevant factors, a trier of fact may base a credibility 

6 determination on . . . the consistency between the applicant’s 

7 or witness’s written and oral statements . . . , [and] the 

8 internal consistency of each such statement.” 8 U.S.C. 

9 § 1158(b)(1)(B)(iii). “We review the agency’s factual 

10 findings, including adverse credibility determinations, under 

11 the substantial evidence standard,” and “[w]e defer . . . to 

12 an IJ’s credibility determination unless, from the totality 

13 of the circumstances, it is plain that no reasonable fact14 finder could make such an adverse credibility ruling.” Xiu 

15 Xia Lin v. Mukasey, 534 F.3d 162, 165, 167 (2d Cir. 2008); 

16 accord Hong Fei Gao, 891 F.3d at 76. 

17 Substantial evidence supports the agency’s determination

18 that Islam was not credible as to his claim that members of 

19 the Awami League attacked him on account of his membership in 

20 the Bangladesh Nationalist Party (“BNP”). The agency 

21 reasonably relied on contradictory statements in Islam’s

22 border interview and hearing testimony regarding his 
4

1 description of an alleged attack in 2012 and whether he was 

2 attacked only once or three times. See 8 U.S.C. 

3 § 1158(b)(1)(B)(iii). Further, the agency reasonably found 

4 the record of Islam’s border interview reliable because it 

5 included a typewritten transcript of the interview that had 

6 been signed by Islam on each page, it reflected that a 

7 translator had been provided, and it revealed that he had 

8 been asked questions designed to elicit a claim for asylum. 

9 See Ming Zhang v. Holder, 585 F.3d 715, 721-22 (2d Cir. 2009). 

10 And Islam failed even to provide a plausible explanation for 

11 these inconsistencies. See 8 U.S.C. § 1158(b)(1)(B)(iii); 

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

13 petitioner must do more than offer a plausible explanation 

14 for his inconsistent statements to secure relief; he must 

15 demonstrate that a reasonable fact-finder would be compelled

16 to credit his testimony.” (cleaned up)); cf. Ming Zhang, 585 

17 F.3d at 725 (“We . . . reject the notion that a petitioner’s 

18 claim that she was nervous and distracted during the credible 

19 fear interview automatically undermines or negates its 

20 reliability as a source of her statements.”). 

21 The agency also reasonably relied on the omission from 

22 Islam’s medical records of his claim that the skin was torn 
5

1 from his back during the 2012 attack because the record 

2 described similar injuries to other body parts. See 8 U.S.C. 

3 § 1158(b)(1)(B)(iii); see also Hong Fei Gao, 891 F.3d at 78–

4 79 (providing that the agency may rely on the omission of 

5 facts that a “witness would reasonably have been expected to 

6 disclose”). Islam failed to explain the omission. See 

7 Majidi, 430 F.3d at 80.

8 The agency also noted his failure to rehabilitate his

9 credibility with reliable corroborating evidence. See Biao 

10 Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An 

11 applicant’s failure to corroborate his or her testimony may 

12 bear on credibility, because the absence of corroboration in 

13 general makes an applicant unable to rehabilitate testimony 

14 that has already been called into question.”). The agency

15 declined to credit affidavits from his family, acquaintances, 

16 and witnesses because some of the affidavits were strikingly 

17 similar, some were from interested parties, and none of the 

18 affiants was made available for cross-examination. See Y.C. 

19 v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) (“We generally 

20 defer to the agency’s evaluation of the weight to be afforded 

21 an applicant’s documentary evidence.”); see also Mei Chai Ye 

22 v. U.S. Dep’t of Justice, 489 F.3d 517, 524 (2d Cir. 2007) 
6

1 (“[T]his court has . . . firmly embraced the commonsensical 

2 notion that striking similarities between affidavits are an 

3 indication that the statements are canned.” (internal 

4 quotation marks omitted)); In re H-L-H- & Z-Y-Z-, 25 I. & N. 

5 Dec. 209, 215 (B.I.A. 2010) (finding that letters from alien’s 

6 friends and family were insufficient to provide substantial 

7 support for alien’s claims because they were from interested 

8 witnesses not subject to cross-examination), overruled on 

9 other grounds by Hui Lin Huang v. Holder, 677 F.3d 130, 133–

10 38 (2d Cir. 2012). 

11 In light of the foregoing, the agency’s adverse 

12 credibility determination is supported by substantial 

13 evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Likai 

14 Gao v. Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven a 

15 single inconsistency might preclude an alien from showing 

16 that an IJ was compelled to find him credible. Multiple 

17 inconsistencies would so preclude even more forcefully.”). 

18 That determination is dispositive of asylum, withholding of 

19 removal, and CAT relief because all three claims were based 

20 on the same factual predicate. See Paul v. Gonzales, 444 

21 F.3d 148, 156–57 (2d Cir. 2006). 

22
7

1 For the foregoing reasons, the petition for review is 

2 DENIED. All pending motions and applications are DENIED and 

3 stays VACATED.

4 FOR THE COURT: 

5 Catherine O’Hagan Wolfe,

6 Clerk of Court