     16-2853
     Ali v. Sessions
                                                                                        BIA
                                                                                  Poczter, IJ
                                                                               A206 225 077
                            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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   13th day of December, two thousand seventeen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            DEBRA ANN LIVINGSTON,
 9            CHRISTOPHER. F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   MOHAMMED ALI,
14            Petitioner,
15
16                     v.                                            16-2853
17                                                                   NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Thomas V. Massucci, New York, NY.
24
25   FOR RESPONDENT:                     Chad A. Readler, Acting Assistant
26                                       Attorney General; Briena L.
27                                       Strippoli, Senior Litigation
28                                       Counsel; John M. McAdams, Jr.,
29                                       Attorney, Office of Immigration
30                                       Litigation, United States
31                                       Department of Justice, Washington,
32                                       DC.
1        UPON DUE CONSIDERATION of this petition for review of a

2    Board of Immigration Appeals (“BIA”) decision, it is hereby

3    ORDERED, ADJUDGED, AND DECREED that the petition for review is

4    DENIED.

5        Petitioner     Mohammed   Ali,   a   native   and   citizen   of

6    Bangladesh, seeks review of an August 8, 2016, decision of the

7    BIA affirming a July 29, 2015, decision of an Immigration Judge

8    (“IJ”) denying Ali’s application for asylum, withholding of

9    removal, and relief under the Convention Against Torture

10   (“CAT”).    In re Mohammed Ali, No. A 206 225 077 (B.I.A. Aug. 8,

11   2016), aff’g No. A 206 225 077 (Immig. Ct. N.Y. City July 29,

12   2015).    We assume the parties’ familiarity with the underlying

13   facts and procedural history in this case.

14       Under the circumstances of this case, we have reviewed the

15   IJ’s decision as modified by the BIA.       Xue Hong Yang v. U.S.

16   Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).               The

17   applicable standards of review are well established.              See

18   8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

19   165-66 (2d Cir. 2008).        “Considering the totality of the

20   circumstances, and all relevant factors, a trier of fact may

21   base a credibility determination on the demeanor, candor, or

22   responsiveness of the applicant . . . the consistency between

23   the applicant’s or witness’s written and oral statements . . .

                                      2
1    and any inaccuracies or falsehoods in such statements, without

2    regard to whether an inconsistency, inaccuracy, or falsehood

3    goes to the heart of the applicant’s claim.”                          8 U.S.C.

4    § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64 & n.2.

5    “We defer . . . to an IJ’s credibility determination unless .

6    . . it is plain that no reasonable fact-finder could make such

7    an adverse credibility ruling.”            Xiu Xia Lin, 534 F.3d at 167.

8         Here,    substantial      evidence        supports         the   adverse

9    credibility determination.           The agency reasonably relied on

10   discrepancies between the letters Ali submitted from fellow

11   Bangladesh    Nationalist      Party       (“BNP”)   members      and    their

12   accompanying translations.           See id. at 166-67.          The letters

13   were dated as prepared after the accompanying translations,

14   calling into question the validity of the letters.                When asked

15   to explain, Ali attributed the discrepancy to a translation

16   error   and   explained    that      his    cousin   had    corrected      the

17   translations.     The     IJ   was    not    required      to   accept   this

18   explanation, as there was no evidence from Ali’s cousin in the

19   record, nor any information about the translation process.                See

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

21   must do more than offer a plausible explanation for his

22   inconsistent statements to secure relief; he must demonstrate

23   that a reasonable fact-finder would be compelled to credit his


                                           3
1    testimony.” (internal quotation marks and citations omitted)).

2    The IJ reasonably determined that the letters—which were

3    submitted to prove Ali’s political activities—undermined his

4    claim of persecution on account of his political opinion.        See

5    Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (“[A] finding

6    of fraudulent evidence redounds upon all evidence the probative

7    force of which relies in any part on the credibility of the

8    petitioner.”).

9        The adverse credibility determination is further bolstered

10   by Ali’s omission from his application of his first attempt to

11   flee to the United States while in hiding in Bangladesh.         See

12   Xiu Xia Lin, 534 F.3d at 166 n.3 (“An inconsistency and an

13   omission   are   .   .   .   functionally   equivalent.”   (citation

14   omitted)); see also Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d

15   Cir. 2006) (“[E]ven where an IJ relies on discrepancies or

16   lacunae that, if taken separately, concern matters collateral

17   or ancillary to the claim . . . the cumulative effect may

18   nevertheless be deemed consequential by the fact-finder.”

19   (internal quotation marks and citations omitted)).         The agency

20   was not required to credit Ali’s explanation that no one asked

21   him about his prior attempt to enter the United States, given

22   that his application covers the relevant time period and the

23   omission calls into question his fear of harm and whether he


                                        4
1    was in hiding both before and after that first departure.

2    Majidi, 430 F.3d at 80-81.

3        Finally, the agency’s demeanor finding provides further

4    support for the adverse credibility determination.               See Li Hua

5    Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006)

6    (“In reviewing adverse credibility determinations, we give

7    particular      deference   to    those   that    are   based      on    the

8    adjudicator’s     observation      of   the    applicant’s   demeanor.”

9    (internal quotation marks, brackets, and citations omitted)).

10   Moreover, the record supports the IJ’s conclusion that Ali’s

11   testimony was nonresponsive and evasive on cross examination.

12   Id. (“[T]he IJ’s ability to observe the witness’s demeanor

13   places her in the best position to evaluate whether apparent

14   problems   in    the   witness’s    testimony     suggest    a    lack   of

15   credibility or, rather, can be attributed to an innocent cause.”

16   (internal quotation marks and citation omitted)).

17       Given the discrepancy that called into question the

18   validity of Ali’s corroborating evidence and his political

19   activities,     the    omission    of   his   first   attempt     to    flee

20   Bangladesh, and the IJ’s demeanor finding, substantial evidence

21   supports the agency’s adverse credibility determination.                 See

22   Xiu Xia Lin, 534 F.3d at 167.                 The adverse credibility

23   determination is dispositive of asylum, withholding of removal,


                                         5
1    and CAT relief because all three claims are based on the same

2    factual predicate.    See Paul v. Gonzales, 444 F.3d 148, 156–

3    57 (2d Cir. 2006).

4        For the foregoing reasons, the petition for review is

5    DENIED.    As we have completed our review, any stay of removal

6    that the Court previously granted in this petition is VACATED,

7    and any pending motion for a stay of removal in this petition

8    is DISMISSED as moot.    Any pending request for oral argument

9    in this petition is DENIED in accordance with Federal Rule of

10   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

11   34.1(b).

12                                 FOR THE COURT:
13                                 Catherine O’Hagan Wolfe, Clerk




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