19

- 3770 Islam v. Garland BIA Christensen , IJ A 206 910 053 

### 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 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 6**  **th da**  **y of January**  **, two thousand twenty** 
**** 4 **two**

**.** 5 6 **PRESENT:** 7 **DENNIS JACOBS,** 8 **DENNY CHIN ,**  9 **MICHAEL H. PARK ,**  10 **Circuit Judges.** 11

**_____________________________________** 12 13 **MOHAMMAD Z. ISLAM ,**  14 **Petitioner ,**  15 16
**v. 19** 

**- 3770**  17 **NAC** 18 **MERRICK B. GARLAND ,**  **UNITED** 19 **STATES ATTORNEY GENERAL**  **,** 20 **R espondent** 

**.** 21

**_____________________________________** 22 23 **FOR PETITIONER :**  Thomas V. Massucci , Esq. , New 24 York , NY

. 25 26 **FOR RESPONDENT:** Ethan P. Davis , Acting Assistant 27 Attorney General; John S. Hogan , 282 Assistant Director ; Deitz P. 1 Lefort , Trial Attorney , Office of 2 Immigration Litigation , United 3 States Department of Justice, 4 Washington, DC. 5 6 U PON DUE CONSIDERATION of this 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 Mohammad Z. Islam , a native and citizen of 11
Bangladesh , seeks review of a November 6, 2019 decision of 12
the BIA affirming a February 28, 2018 decision of an 13

I mmigration Judge (“IJ”) d enying Islam ’s motion to suppress 14

and application for asylum, withholding o f removal , and 15
relief under the Convention Against Torture (“CAT”). In re 16

Mohammad Z. Islam , No. A 206 910 053 (B.I.A. Nov. 6, 2019 ), 17
aff’g No. A 206 910 053 (Immig. Ct. N.Y. C. Feb. 28, 2018 ). We 18
assume the parties’ familiarity with the underlying facts and 19
procedural his tory. 20

W e have consider ed both the IJ’s and the BIA’s opinions. 21
Wangchuck v. Dep’t of Homeland Sec. , 448 F.3d 524, 528 (2d 22
Cir. 2006). The applicable standards of review are well 23

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

Sessions , 891 F.3d 67, 76 (2d Cir. 2018). Because Islam 253 explicitly abandons any challenge to the agency’s denial of 1
his motion to suppress, we consider only the adverse 2
credibility determination. 3
“Considering the totality of the circumstances, and all 4
relevant factors, a trier of fact may base a credibility 5

determination on

. . . the consistency between the applicant’s 6
or witness’s written and oral statements . . . , [and] the 7
internal consistency of each such stat ement.” 8 U.S.C. 8

§ 1158(b)(1)(B)(iii)

. “We review the agency’s factual 9
findings, including adverse credibility determinations, under 10
the substantial evidence standard,” and “ [w] e defer . . . to 11
an IJ’s credibility determination unless, from the totality 12
of the circumstances, it is plain that no reasonable fact

13
finder could make such an adverse credibility ruling.” Xiu 14
Xia Lin v. Mukasey , 534 F.3d 162, 165, 167 (2d Cir. 2008) ; 15
accord Hong Fei Gao , 891 F.3d at 76. 16
Substantial evidence supports the agency’s determination 17

that Islam was not credible as to his claim that members of 18
the Awami League attacked him on account of his membership in 19
the Bangladesh National ist Party (“BNP”). The agency 20
reasonably relied on contradictory statements in Islam’s 21

border interview and hearing testimony regarding his 224 description of an alleged attack in 2012 and whether he was 1
attacked only once or three times. See 8 U.S.C. 2

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

the record of Islam’s bord er interview reliable because it 4
included a typewritten transcript of the interview that had 5

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

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

been asked questions designed to elicit a claim fo r asylum. 8
See Ming Zhang v. Holder , 585 F.3d 715, 721

- 22 (2d Cir. 2009)

. 9

And Islam failed even to provide a plausible explanation for 10

these inconsistencies. See 8 U.S.C. § 1158(b)(1)(B)(iii); 11
Majidi v. Gonzales , 430 F.3d 77, 80 (2d Cir. 2005) (“A 12
petitioner must do more than offer a plausible explanation 13

for his inconsistent statements to secure relief; he must 14

demonstrate that a reasonable fact

- finder would be compelled 15
to credit his testimony.” ( cleaned up )) ; cf. Ming Zhang , 58 5 16

F.3d at 725 (“ We . . . reject the notion that a petitioner’s 17
claim that she was nervous and distracted during the credible 18
fear interview automatically undermines or negates its 19
reliability as a source of her statements

. ”)

. 20
The agency also reasonably relied on the omission from 21

Islam’s medical record s of his claim that the skin was torn 225 from his back during the 2012 attack because the record 1
described similar injuries to other body parts. See 8 U.S.C. 2

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

– 3

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

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

disclose” ). Islam failed to explain the omission. See 6
Majidi , 430 F.3d at 80

. 7

T he agency also noted his failure to rehabilitate h is 8
credibility with reliable corroborating evidence. See Biao 9
Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 2007) ( “An 10
applicant’s failure to corroborate his or her testimony may 11
bear on credibility, because the absence of corrobor ation in 12
general makes an applicant unable to rehabilitate testimony 13
that has already been called into question.” )

. T he agency 14

declined to credit affidavits from his family, acquaintances, 15

and witnesses because some of the affidavits were strikingly 16

simil ar, some were from interested parties, and none of the 17

affiants was made available for cross

- examination. See Y.C. 18

v. Holder , 741 F.3d 324, 332 (2d Cir. 2013) (“We generally 19
defer to the agency’s evaluation of the weight to be afforded 20
an applicant’s documentary evidence.”); see also Mei Chai Ye 21
v. U.S. Dep’t of Justice , 489 F.3d 517, 524 (2d Cir. 2007) 226 (“[T]his court has . . . firmly embraced the commonsensical 1
notion that striking similarities between affidavits are an 2
indication that the statements are canned.” (internal 3
quotation marks omitted)) ; In re H

- L

- H

- & Z

- Y

- Z

- , 25 I. & N. 4
Dec. 209, 215 (B.I.A. 2010) (finding that let ters from alien’s 5
friends and family were insufficient to provide substantial 6
support for alien’s claims because they were from interested 7
witnesses not subject to cross

- examination), overruled on 8
other grounds by Hui Lin Huang v. Holder , 677 F.3d 130, 133

– 9
38 (2d Cir. 2012). 10
In light of the foregoing , the agency’s adverse 11
credibility determination is supported by substantial 12

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

Gao v. Barr , 968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven a 14
single in consistency might preclude an alien from showing 15
that an IJ was compelled to find him credible. Multiple 16
inconsistencies would so preclude even more forcefully.”). 17

That determination is dispositive of asylum, withholding of 18
removal, and CAT relief because all three claims were based 19
on the same factual predicate

. See Paul v. Gonzales , 444 20
F.3d 148, 156

– 57 (2d Cir. 2006). 21

227 For the foregoing reasons, the petition for review is 1

DENIE D . All pending motions and applications are DENIED and 2

stays VACATED. 3

FOR THE COURT: 4 Catherine O ’Hagan Wolfe , 5 Clerk of Court 6