     15-729
     Hossain v. Yates
                                                                                                                     BIA
                                                                                                           Christensen, IJ
                                                                                                           A201 291 732

                             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   27th day of January , two thousand seventeen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            PIERRE N. LEVAL,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   AMIR HOSSAIN,
14            Petitioner,
15
16                      v.                                                                    15-729
17                                                                                            NAC
18   SALLY Q. YATES, ACTING UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent*.
21   _____________________________________
22
23   FOR PETITIONER:                                  Salim Sheikh, New York, N.Y.
24
25   FOR RESPONDENT:                                   Benjamin C. Mizer, Principal Deputy
26                                                     Assistant Attorney General; Anthony
27                                                     C. Payne, Assistant Director; Lauren
28                                                     E. Fascett, Trial Attorney; Abigail
29                                                     E. Leach, Law Clerk, Office of


     * Pursuant to Federal Rule of Appellate Procedure 43(c) (2), Acting Attorney General Sally Q. Yates is automatically
     substituted for former Attorney General Loretta E. Lynch as Respondent.
 1                               Immigration   Litigation,   United
 2                               States   Department  of   Justice,
 3                               Washington, D.C.
 4
 5
 6        UPON DUE CONSIDERATION of this petition for review of a Board

 7   of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,

 8   ADJUDGED, AND DECREED that the petition for review is DENIED.

9         Petitioner Amir Hossain, a native and citizen of Bangladesh,

10   seeks review of a February 18, 2015, decision of the BIA,

11   affirming a January 9, 2013, decision of an Immigration Judge

12   (“IJ”) denying Hossain’s application for asylum, withholding

13   of removal, and relief under the Convention Against Torture

14   (“CAT”). In re Amir Hossain, No. A201 291 732 (B.I.A. Feb. 18,

15   2015), aff’g No. A201 291 732 (Immig. Ct. N.Y. City Jan. 9, 2013).

16   We assume the parties’ familiarity with the underlying facts

17   and procedural history in this case.

18        Under the circumstances of this case, we have reviewed both

19   the BIA’s and IJ’s decisions. See Yun-Zui Guan v. Gonzales, 432

20   F.3d 391, 394 (2d Cir. 2005). The applicable standards of review

21   are well established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.

22   Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).

23        The governing REAL ID Act provides that the agency may,

24   “[c]onsidering the totality of the circumstances,” base a

25   credibility finding on an asylum applicant’s “demeanor, candor,


                                     2
1    or responsiveness,” the plausibility of his account, and

2    inconsistencies in his statements and other record evidence

3    “without regard to whether” those inconsistencies go “to the

4    heart of the applicant’s claim.” 8 U.S.C.

5    § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. “We

6    defer . . . to an IJ’s credibility determination unless . . .

7    it is plain that no reasonable fact-finder could make such an

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

9    Further, “[a] petitioner must do more than offer a plausible

10   explanation for his inconsistent statements to secure relief;

11   he must demonstrate that a reasonable fact-finder would be

12   compelled to credit his testimony.” Majidi v. Gonzales, 430

13   F.3d 77, 80 (2d Cir. 2005) (internal quotation marks and

14   citations omitted). Substantial evidence supports the agency’s

15   determination that Hossain was not credible.

16       The agency reasonably relied on inconsistencies between

17   Hossain’s testimony and his border patrol interview.       We

18   “exercise[s] caution” when reviewing border patrol interview

19   statements “because such interviews may be perceived . . . as

20   coercive or threatening . . . [and] aliens may not be entirely

21   forthcoming in the initial interview.” See Yun-Zui Guan, 432

22   F.3d at 396 (internal quotation marks and citations omitted).

23   The agency may nevertheless rely on border patrol interview
                                   3
1    statements when assessing credibility if the interview record

2    “bears hallmarks of accuracy and reliability.” Ming Zhang v.

3    Holder, 585 F.3d 715, 721 (2d Cir. 2009) (quoting Ramsameachire

4    v. Ashcroft, 357 F.3d 169, 181 (2d Cir. 2004)). As the agency

5    observed,    those   hallmarks   were   present   here:   a   Bengali

6    interpreter was used; the interviewer asked whether Hossain

7    “fear[ed] that [he] will be persecuted or tortured” if returned

8    to Bangladesh (that is, questions designed to elicit an asylum

9    and CAT claim); the questions and answers were memorialized in

10   a typewritten document; and at no point during the interview

11   did Hossain seem to have difficulty answering the interviewer’s

12   questions.

13       Because the record of the interview is reliable, the agency

14   was entitled to consider inconsistencies among Hossain’s border

15   patrol interview statements in assessing his credibility. See

16   Ramsameachire, 357 F.3d at 179-80. The inconsistencies arising

17   from those statements, moreover, were a proper basis for the

18   adverse credibility determination.       See Xiu Xia Lin, 534 F.3d

19   at 166-67.   In his border patrol interview, Hossain answered

20   “no” when asked if he feared persecution if sent back to

21   Bangladesh and explained that his purpose for coming to the

22   United States was “to live and work.” Two weeks later at his

23   credible fear interview, however, he stated that he left
                                      4
1    Bangladesh because of political persecution and he feared that

2    he would be killed if returned. Hossain reiterated his claims

3    of past persecution and fear of returning to Bangladesh in his

4    application and testimony. The agency did not err in rejecting

5    Hossain’s various explanations, which did not resolve the

6    inconsistencies and only created further discrepancies.      See

7    Majidi, 430 F.3d at 80; Ming Zhang, 585 F.3d at 725.

8        The credibility determination was also properly based on

9    inconsistencies regarding whether the author of a supporting

10   letter was Hossain’s brother.       See Xiu Xia Lin, 534 F.3d at

11   166-67.   The author, a Connecticut resident, stated in his

12   letter that Hossain is his “close friend” and “is like a younger

13   brother to [him].” However, Hossain testified that the author

14   was his biological brother, and he stated in his application

15   that the author had been directly involved with his political

16   party.    The agency was not required to credit Hossain’s

17   explanations, and the inconsistencies reasonably called into

18   question whether his description of his family in Bangladesh

19   and claims of past persecution were fabricated. See Majidi, 430

20   F.3d at 80; Xiu Xia Lin, 534 F.3d at 166-67.

21        Having properly questioned Hossain’s credibility, the

22   agency reasonably relied further on his failure to provide

23   sufficient corroborating evidence. See Biao Yang v. Gonzales,
                                     5
1    496 F.3d 268, 273 (2d Cir. 2007). Hossain provided no

2    contemporaneous medical records or documentation to corroborate

3    that his store of seven years was destroyed in Bangladesh, or

4    even that he owned a store. He also gave increasingly

5    inconsistent explanations as to how he lost his medical records

6    in Mexico.

7        Substantial   evidence   supports   the   agency’s   adverse

8    credibility determination. See Xiu Xia Lin, 534 F.3d at 167.

9    That finding is dispositive of asylum, withholding of removal,

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

11   factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57

12   (2d Cir. 2006).

13       For the foregoing reasons, the petition for review is

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

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

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

17   is DISMISSED as moot. Any pending request for oral argument in

18   this petition is DENIED in accordance with Federal Rule of

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

20   34.1(b).

21                                FOR THE COURT:
22                                Catherine O’Hagan Wolfe, Clerk




                                   6
