     18-141
     Hossain v. Barr
                                                                                  BIA
                                                                             Ruehle, IJ
                                                                          A206 370 211
                            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
 2   for the Second Circuit, held at the Thurgood Marshall United
 3   States Courthouse, 40 Foley Square, in the City of New York,
 4   on the 21st day of November, two thousand nineteen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            RAYMOND J. LOHIER, JR.,
 9            MICHAEL H. PARK,
10                 Circuit Judges.
11   _____________________________________
12
13   SHAHADAT HOSSAIN,
14            Petitioner,
15
16                     v.                                        18-141
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                   Stephen K. Tills, Esq., Orchard
24                                     Park, NY.
25
26   FOR RESPONDENT:                   Joseph H. Hunt, Assistant
27                                     Attorney General; Andrew N.
28                                     O’Malley, Senior Litigation
29                                     Counsel; Sunah Lee, Trial
30                                     Attorney, Office of Immigration
31                                     Litigation, United States
32                                     Department of Justice, Washington,
33                                     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

4    is DENIED.

5          Petitioner Shahadat Hossain, a native and citizen of

6    Bangladesh, seeks review of a December 27, 2017, decision of

7    the   BIA   affirming   an    April       27,     2017,    decision    of   an

8    Immigration Judge (“IJ”) denying his application for asylum,

9    withholding   of   removal,    and       relief    under    the   Convention

10   Against Torture (“CAT”).        In re Hossain, No. A 206 370 211

11   (B.I.A. Dec. 27, 2017), aff’g No. A 206 370 211 (Immig. Ct.

12   Buffalo Apr. 27, 2017).       We assume the parties’ familiarity

13   with the underlying facts and procedural history in this case.

14         As an initial matter, Hossain’s argument that the agency

15   lacked jurisdiction over his removal proceedings because his

16   notice to appear did not include a hearing date or time is

17   foreclosed by Banegas Gomez v. Barr, 922 F.3d 101 (2d Cir.

18   2019).   Id. at 110–12.

19         Turning to the adverse credibility determination, we have

20   reviewed the IJ’s decision as modified by the BIA.                    See Xue

21   Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d

22   Cir. 2005).     The applicable standards of review are well


                                          2
1    established.        See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.

2    Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing adverse

3    credibility     determination          under     a    substantial           evidence

4    standard).     “Considering the totality of the circumstances,

5    and   all   relevant     factors,      a     trier    of   fact       may    base   a

6    credibility determination on . . . the consistency between

7    the     applicant’s          or     witness’s          written         and      oral

8    statements . . .,       the       internal     consistency       of    each    such

9    statement, [and] the consistency of such statements with

10   other evidence of record.”              8 U.S.C. § 1158(b)(1)(B)(iii).

11   “We    defer . . .      to    an      IJ’s     credibility        determination

12   unless . . . it is plain that no reasonable fact-finder could

13   make such an adverse credibility ruling.”                      Xiu Xia Lin v.

14   Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam); accord

15   Hong Fei Gao, 891 F.3d at 76.               Substantial evidence supports

16   the agency’s determination that Hossain was not credible as

17   to    his   claim    that     Awami    League        members   assaulted        and

18   threatened to kill him on account of his membership in the

19   Bangladesh Nationalist Party.

20         The agency reasonably relied on inconsistencies between

21   Hossain’s testimony and his documentary evidence.                            Hossain

22   repeatedly testified that Awami League members assaulted him


                                             3
1    at 8:00 p.m. as he returned from a religious holiday gathering

2    in August 2013.          He testified that he sustained serious

3    injuries and was taken to a hospital, from which he was

4    discharged without records, and then to another hospital

5    where he remained for two days, receiving documentation of

6    his injuries the day of discharge.                He submitted what he

7    claimed were original records of his treatment.

8           However, at his hearing, when confronted with his own

9    submission of records from the first hospital stating he was

10   admitted at 6:00 p.m., two hours before the alleged assault,

11   Hossain had no explanation other than that the record should

12   have reflected an admission at 9:00 p.m.               He also was unable

13   to provide a clear explanation as to why another date more

14   than    a   year    after   treatment      appeared    on    these   records.

15   Hossain later testified that the document reflected the date

16   it was notarized, before the doctor signed the records.                   See

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

18   petitioner must do more than offer a plausible explanation

19   for his inconsistent statements to secure relief; he must

20   demonstrate that a reasonable fact-finder would be compelled

21   to     credit      his   testimony.”       (internal        quotation   marks

22   omitted)).      To the extent that he first stated that he had


                                            4
1    no records from this hospital, his lack of familiarity with

2    his own evidence further undermined his credibility.

3        Given that these inconsistencies relate directly to the

4    sole incident of past harm and undermine the reliability of

5    the records, the totality of the circumstances supports the

6    agency’s adverse credibility determination.             See 8 U.S.C.

7    § 1158(b)(1)(B)(iii); Xian Tuan Ye v. Dep’t of Homeland Sec.,

8    446 F.3d 289, 295 (2d Cir. 2006) (per curiam) (holding that

9    material inconsistency regarding basis of applicant’s asylum

10   claim     is   substantial   evidence   for   adverse    credibility

11   determination).     That determination is dispositive of asylum,

12   withholding of removal, and CAT relief because all three

13   claims are based on the same factual predicate.          See Paul v.

14   Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

15       For the foregoing reasons, the petition for review is

16   DENIED.    All pending motions and applications are DENIED and

17   stays VACATED.

18                                   FOR THE COURT:
19                                   Catherine O’Hagan Wolfe,
20                                   Clerk of Court




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