Opinion
18-3152 NAC
11-02-2020
ABUL KALAM, Petitioner, v. WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent.
FOR PETITIONER: Gregory Marotta, Esq., Vernon, NJ. FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Song Park, Acting Assistant Director; Aaron D. Nelson, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2nd day of November, two thousand twenty. PRESENT: SUSAN L. CARNEY, MICHAEL H. PARK, WILLIAM J. NARDINI, Circuit Judges.
FOR PETITIONER:
Gregory Marotta, Esq., Vernon, NJ.
FOR RESPONDENT:
Joseph H. Hunt, Assistant Attorney General; Song Park, Acting Assistant Director; Aaron D. Nelson, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.
Petitioner Abul Kalam, a native and citizen of Bangladesh, seeks review of an October 2, 2018, decision of the BIA affirming a September 13, 2017, decision of an Immigration Judge ("IJ") denying Kalam's application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). In re Abul Kalam, No. A 208 118 340 (B.I.A. Oct. 2, 2018), aff'g No. A 208 118 340 (Immig. Ct. N.Y. City Sept. 13, 2017). We assume the parties' familiarity with the underlying facts and procedural history.
We have reviewed both the IJ's and BIA's decisions "for the sake of completeness." Wangchuck v. Dep't of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing adverse credibility determinations for substantial evidence). "Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on . . . the consistency between the applicant's . . . written and oral statements . . . , the internal consistency of each such statement, [and] the consistency of such statements with other evidence of record . . . without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim . . . ." 8 U.S.C. § 1158(b)(1)(B)(iii). "We defer . . . to an IJ's credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling." Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). Substantial evidence supports the agency's determination that Kalam was not credible as to his claim that he was persecuted in Bangladesh by the Awami League on account of his support for the Bangladesh Nationalist Party ("BNP").
The agency reasonably relied on a series on inconsistencies among Kalam's asylum application, his testimony, and his documentary evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii). First, Kalam omitted from his application and direct testimony that there was a physical attack on a BNP procession that he was participating in. The IJ was not required to credit his explanation that he was not asked about the incident because his attorney asked an open- ended question about other harm. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) ("A petitioner must do more than offer a plausible explanation for . . . inconsistent statements to secure relief; he must demonstrate that a reasonable fact-finder would be compelled to credit his testimony." (internal quotation marks omitted)). The IJ reasonably found this omission material, because an alleged attack during a BNP political procession went to the heart of Kalam's claim of political persecution. See Hong Fei Gao, 891 F.3d at 78-79 (in "assessing the probative value of the omission of certain facts, an IJ should consider whether those facts are ones that a credible petitioner would reasonably have been expected to disclose under the relevant circumstances").
Second, Kalam made inconsistent statements about how long he spent outside of Bangladesh (either two years or a few days) in the years preceding the alleged persecution. See Xiu Xia Lin, 534 F.3d at 167 (allowing reliance on collateral or ancillary inconsistencies under a "totality of the circumstances" analysis). And he did not provide a responsive explanation for this inconsistency, much less one that would have compelled the factfinder to accept it. See Majidi, 430 F.3d at 80.
Third, the agency reasonably found that Kalam's documentary evidence introduced further inconsistency and failed to rehabilitate his credibility. See 8 U.S.C. § 1158(b)(1)(B)(iii); Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) ("An applicant's failure to corroborate his or her testimony may bear on credibility, because the absence of corroboration in general makes an applicant unable to rehabilitate testimony that has already been called into question."). Kalam alleged that the Awami League twice set fire to his home while his wife and mother were present, but their letters referenced only one fire. Moreover, their letters, as well as letters from Kalam's son and BNP members, alleged that Kalam suffered physical harm or was tortured and attacked by Awami League members numerous times. Kalam, however, denied such physical harm. Kalam's son also wrote that Kalam never received a formal education, but Kalam testified that he had a college education. The existence of these multiple inconsistencies supported the IJ's adverse credibility finding. Moreover, no factfinder would have been compelled to accept Kalam's attempt to explain away these inconsistencies with arguments that his mother was illiterate, did not understand the word "fire," was old, and that the person typing her letter made a mistake, or that his wife may have considered the other fire to be inconsequential. See Majidi, 430 F.3d at 80-81.
The adverse credibility determination is dispositive of asylum, withholding of removal, and CAT relief because all three forms of relief are based on the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is DENIED. All pending motions and applications are DENIED and stays VACATED.
FOR THE COURT:
Catherine O'Hagan Wolfe,
Clerk of Court