Opinion
No. 08-4595-ag.
February 17, 2010.
UPON DUE CONSIDERATION of this petition for review of a decision of the Board of Immigration Appeals ("BIA"), it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is GRANTED.
Durga Prasad Bhurtel, Chhetry Associates, P.C., New York, NY, for Petitioner.
Brianne Whelan Cohen, Trial Attorney (Michael F. Hertz, Acting Assistant Attorney General, Civil Division, William C. Peachey, Assistant Director), Office of Immigration Litigation, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.
PRESENT: DENNIS JACOBS, Chief Judge, JON O. NEWMAN, RALPH K. WINTER, Circuit Judges.
SUMMARY ORDER
Petitioner Shameem Ahmed, a native and citizen of Bangladesh, seeks review of an August 19, 2008 order of the BIA affirming the October 10, 2006 decision of Immigration Judge ("IJ") Annette S. Elstein, denying his application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). In re Shameem Ahmed, No. A073 533 203 (B.I.A. Aug. 19, 2008), aff'g No. A073 533 203 (Immig. Ct. N.Y. City Oct. 10, 2006). We assume the parties' familiarity with the underlying facts and procedural history in this case.
When the BIA summarily affirms the decision of the IJ without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), this Court reviews the IJ's decision as the final agency determination, see Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008). We review the agency's factual findings under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008). Questions of law and the application of law to undisputed fact are reviewed de novo. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
The IJ's adverse credibility finding was based primarily on a letter summarizing the findings of a consular investigation team ("consular report"). The consular report concluded that a medical document submitted by Ahmed in support of his application was not genuine. According to the consular report, the medical document did not conform to the format of the hospital's admissions certificate. Although the hospital had a patient record for Ahmed, that record indicated Ahmed was admitted two days earlier than he had alleged and that he had been treated for "three perforations" rather than injuries related to an alleged beating.
Generally, an IJ may draw a negative inference regarding the authenticity of the remainder of an applicant's uncorroborated evidence when it is established that the applicant submitted a fraudulent document. See Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007). In this case, however, the consular report is insufficiently reliable to support an adverse credibility determination under the substantial evidence standard. Zhen Nan Lin v. U.S. Dep't of Justice, 459 F.3d 255, 270-72 (2d Cir. 2006). The following "non-exhaustive" factors "provide an analytical framework for assessing the reliability of an investigative report:" "(i) the identity and qualifications of the investigator(s); (ii) the objective and extent of the investigation; and (iii) the methods used to verify the information discovered." Id. at 271 (relying on Memorandum from Bo Cooper, INS General Counsel, to Jeffrey Weiss, INS Director of Int'l Affairs, Confidentiality of Asylum Applications and Overseas Verification of Documents and Application Information 6-7, (June 21, 2001)).
The consular report sufficiently describes the objective and extent of the consular investigation, thereby satisfying the second factor. But the consular report presents no information regarding the identity or qualifications of the "consular investigation team." See Zhen Nan Lin, 459 F.3d at 271 (finding insufficiency where a consular report included "the names and titles of the investigators," but lacked any "information regarding their competency or qualifications"). It is merely a letter from Nadia Tongour, Director of the Office of Country Reports and Asylum Affairs, summarizing the findings of unidentified persons at the consulate. The consular report states that the investigation team "spoke with a senior hospital official" and "examine[d] admissions records." The consular report neither includes the name, title, or qualifications of this senior hospital official nor does it reveal the nature of the hospital's record-keeping. This description is insufficiently detailed to explain "the methods used to verify the information discovered." Id.
The IJ's adverse credibility determination is dependent on the consular report. The IJ did observe that "[t]he mere fact of the conflict of dates [regarding Ahmed's hospital admission and service as the Jatiyo Party publicity head], regardless of whether the [medical document] was false or not, is sufficient to put [Ahmed's] credibility at risk." But this observation falls short of an adverse credibility determination independent of the consular report. The discrepancy in the date of Ahmed's hospital admission arises out of the consular report. The discrepancy in the date of Ahmed's service as the Jatiyo Party publicity head is too minor, even when aggregated with other discrepancies, to support an adverse credibility determination. See Diallo v. INS, 232 F.3d 279, 288 (2d Cir. 2000) ("Where an applicant's testimony is generally consistent, rational, and believable, disparities . . . need not be fatal, especially if the errors are relatively minor and isolated."). The IJ's adverse credibility determination thus cannot survive review absent reliance on the consular report, and remand is therefore appropriate. See Li Hua Lin v. U.S. Dep't of Justice, 453 F.3d 99, 111 (2d Cir. 2006) ("The more central errant finding was to the IJ's adverse credibility determination, naturally, the less confident we can be that remand would be futile.").
No other ground permits denial of the petition. An applicant who establishes past persecution on account of a protected ground is entitled to a presumption that he has a well-founded fear of future persecution on the same basis; the government bears the burden of rebutting this presumption by showing that changed circumstances render the applicant's fear unfounded. See Baba v. Holder, 569 F.3d 79, 86 (2d Cir. 2009) ("The law is clear that a showing of past persecution shifts the burden to the government on the question of the petitioner's well-founded fear of future persecution."). The IJ observed that even if Ahmed's testimony had been credible, Ahmed was not entitled to relief because of changed circumstances in Bangladesh. The IJ may have implicitly assumed that Ahmed established past persecution for purposes of her changed circumstances analysis, but she certainly did not make that assumption explicit. The resulting ambiguity precludes this Court from evaluating whether the IJ gave Ahmed the benefit of the presumption of a well-founded fear of future persecution. Remand is therefore appropriate. See Beskovic v. Gonzales, 467 F.3d 223, 227 (2d Cir. 2006) ("Whether or not Beskovic is entitled to a presumption of future persecution requires a determination . . . of whether he suffered past persecution. Because we cannot determine whether the IJ correctly assessed Beskovic's claim of past persecution, we are stymied.").
For the foregoing reasons, the petition for review is GRANTED and the case is REMANDED to the agency for further proceedings consistent with this order. On remand, the agency may do one or more of the following: (i) allow the record to be reopened for further fact-finding related to the consular report; (ii) evaluate the record and any additional facts added to the record for discrepancies not relied on by the IJ, but sufficient to give rise to an adverse credibility determination independent of the consular report; and (iii) to assume past persecution, accord Ahmed the benefit of the presumption of a well-founded fear of future persecution, and determine whether the government has sustained its burden of demonstrating changed circumstances. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2) and Second Circuit Local Rule 34.1(b).