     17-293
     Rashid v. Barr
                                                                                  BIA
                                                                            Loprest, IJ
                                                                          A088 513 116


                           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
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 12th day of April, two thousand nineteen.
 5
 6   PRESENT:
 7            PIERRE N. LEVAL,
 8            REENA RAGGI,
 9            RICHARD C. WESLEY,
10                 Circuit Judges.
11   _____________________________________
12
13   MAHFUZ RASHID, AKA MAHFUZUR
14   RASHID,
15            Petitioner,
16
17                    v.                                         17-293
18                                                               NAC
19   WILLIAM P. BARR
20   UNITED STATES ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                    Amy Nussbaum Gell, Gell & Gell,
25                                      New York, NY.
26
27   FOR RESPONDENT:                    Chad A. Readler, Principal
28                                      Deputy Assistant Attorney
29                                      General; Claire L. Workman,
30                                      Senior Litigation Counsel; Juria
1                                        L. Jones, Trial Attorney, Office
2                                        of Immigration Litigation,
3                                        United States Department of
4                                        Justice, Washington, DC.
5
6          UPON DUE CONSIDERATION of this petition for review of a

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

8    ORDERED, ADJUDGED, AND DECREED that the petition for review

9    is GRANTED.

10         Petitioner     Mahfuz      Rashid,      a    native      and    citizen    of

11   Bangladesh, seeks review of a January 17, 2017, decision of

12   the BIA affirming a May 20, 2016, decision of an Immigration

13   Judge   (“IJ”)      denying      Rashid’s         application        for   asylum,

14   withholding    of    removal,     and       relief     under    the    Convention

15   Against Torture (“CAT”).          In re Mahfuz Rashid, No. A088 513

16   116 (B.I.A. Jan. 17, 2017), aff’g No. A088 513 116 (Immig.

17   Ct.   N.Y.   City    May   20,    2016).          We   assume        the   parties’

18   familiarity with the underlying facts and procedural history

19   in this case.

20         Under the circumstances of this case, we have reviewed

21   the IJ’s decision as supplemented and modified by the BIA.

22   See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005);

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

24   Cir. 2005); see also Yun-Zui Guan v. Gonzales, 432 F.3d 391,

25   394 (2d Cir. 2005).        The applicable standards of review are

                                             2
1    well established.       See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin

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

3           The governing REAL ID Act credibility standard provides

4    that    the   agency    must   “[c]onsider[]      the   totality    of   the

5    circumstances,” and may base a credibility finding on an

6    applicant’s      “demeanor,        candor,   or   responsiveness,”       the

7    plausibility of his account, and inconsistencies in his or

8    his witness’s statements, “without regard to whether” they go

9    “to    the    heart    of    the    applicant’s    claim.”      8   U.S.C.

10   § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 163-

11   64,    166-67.         “We   defer . . . to       an    IJ’s   credibility

12   determination unless . . . it is plain that no reasonable

13   fact-finder could make such an adverse credibility ruling.”

14   Xiu Xia Lin, 534 F.3d at 167. As set forth below, one of the

15   agency’s two omission findings is erroneous, and we cannot

16   confidently predict that remand would be futile because the

17   only other basis for the adverse credibility determination—a

18   demeanor finding—contains errors.

19   I.     Omissions

20          “[W]here . . . perceived incongruities in an asylum

21   applicant’s testimony are not plainly obvious, an IJ cannot

22   rely on them to support an adverse credibility ruling without


                                            3
1    first    identifying   the   alleged       inconsistencies    for   the

2    applicant and giving the applicant an opportunity to address

3    them.” Ming Shi Xue v. BIA, 439 F.3d 111, 121 (2d Cir. 2006).

4    “[I]t is the IJ’s duty to make sure that the record we review

5    includes both the alien’s explanation for any non-‘dramatic’

6    discrepancies, on the one hand, and the IJ’s reasons for

7    rejecting ‘significant’ explanations, on the other.”            Id. at

8    125.    The concerns underlying this duty may be heightened

9    when omissions are involved.       Id. at 125 n.17 (“[W]e should

10   bear in mind that the language barriers, often present in

11   asylum proceedings . . . may make applicants more reluctant

12   to volunteer information for which they were not asked.”). A

13   “contradiction    is   obvious    .    .    .   where   the   relevant

14   inconsistency is sufficiently conspicuous as to be evident,

15   and where it is central enough to the applicant’s claim that

16   it could not have been reasonably overlooked by the parties

17   or the IJ.”    Id. at 120.       “[C]ontradictions . . . are not

18   obvious . . . where they are not premised on ‘dramatically

19   different’ accounts of the alleged persecution.” Id. at 121.

20          We acknowledge that the agency reasonably found that

21   Rashid omitted threatening visits by Awami League (“AL”)

22   members to his home from his testimony, which he had cited in


                                       4
1    his written application.           See Xiu Xia Lin, 534 F.3d at 166-

2    67 & n.3.      Rashid stated in his application that AL members

3    showed up at his home to warn his family and to threaten him;

4    his father’s letter stated that AL members came to his home

5    and pushed and threatened him.              But Rashid did not mention

6    these incidents during his testimony.                  Rashid’s argument

7    here—that there was no omission because he testified to

8    receiving      threatening   phone        calls—does      not   resolve    the

9    problem. Rashid was specifically asked if there was anything

10   other   than    telephonic    threats       after   his    attack,   and   he

11   responded   that    there    was    not,    thereby    contradicting       his

12   application and his father’s letter.

13       Nonetheless, Rashid is correct that the agency erred in

14   finding that he omitted a 2007 altercation at a rally from

15   his testimony.     Rashid stated in his application that the AL

16   caused a physical altercation at a Bangladesh Nationalist

17   Party (“BNP”) rally at a college in April 2007, but he escaped

18   unhurt. At the outset of his testimony, when asked what kind

19   of problems he personally experienced, Rashid stated he had

20   verbal conflicts and arguments with the AL due to his role as

21   a local BNP press secretary.               He was then asked whether

22   anything went beyond arguments, and he described a September


                                           5
1    2009 beating in which he was stabbed in the chest and then

2    hospitalized for 12 days.     He was never given an opportunity

3    to testify in narrative form or asked to describe incidents

4    prior to the September 2009 attack in which he did not

5    experience physical harm.      Moreover, even if this could be

6    considered an omission, the IJ erred by not asking Rashid to

7    explain   the   omission   given       that   it    did   not   result   in

8    “dramatically    different    accounts”        of     the   harm   Rashid

9    suffered.   Ming Shi Xue, 439 F.3d at 120 (internal quotation

10   marks omitted). And while Rashid had an opportunity to state

11   anything else he wanted to tell the IJ, that opportunity does

12   not discharge an IJ’s duty of confrontation when non-obvious

13   omissions are involved. Id. at 125. Although the Government

14   is correct that Rashid did not argue to the BIA that the IJ

15   failed to confront him with this omission, he did challenge

16   the IJ’s reliance on the finding.             Because we may consider

17   “specific, subsidiary legal argument[s]” not raised before

18   the BIA, we can consider Rashid’s argument. Gill v. INS, 420

19   F.3d 82, 87 (2d Cir. 2005).        As we have explained, without

20   the requirement that IJs solicit explanations for non-obvious

21   discrepancies, “asylum applicants would frequently be denied

22   the opportunity to clarify genuinely consistent testimony


                                        6
1    that the IJ has unwittingly misconstrued.                 And, conversely,

2    immigration judges could prematurely decide that testimony is

3    inconsistent     when,    in    fact,       the   purported    discrepancies

4    readily admit of explanations which the IJ would find valid.”

5    Ming Shi Xue, 439 F.3d at 122.              Further, the probative value

6    of this omission is diminished given that Rashid was not asked

7    to describe incidents prior to the September 2009 attack in

8    which he did not experience physical harm.                See Hong Fei Gao

9    v. Sessions, 891 F.3d 67, 78 (2d Cir. 2018) (“[T]he probative

10   value   of   a    witness’s . . . silence           on    particular    facts

11   depends on whether those facts are ones the witness would

12   reasonably have been expected to disclose.”).

13   II. Remand Futility Analysis

14       Because      one     of    the   two      omissions    underlying    the

15   credibility      determination       is     erroneous,    we    must   assess

16   whether remand would be futile.               Lianping Li v. Lynch, 839

17   F.3d 144, 149 (2d Cir. 2016).

18       The overarching test to deem a remand futile is when
19       the reviewing court can confidently predict that the
20       agency would reach the same decision absent the
21       errors that were made. To determine whether remand
22       would be futile, a reviewing court should assess the
23       entire record and determine whether, based on the
24       strength of the evidence supporting the error-free
25       findings and the significance of those findings, it
26       is clear that the agency would adhere to its decision
27       were the petition remanded.

                                             7
1
2    Id. (internal quotation marks and citation omitted).                     As

3    discussed below, we cannot not deem remand futile because the

4    only     other   finding      underlying     the     adverse    credibility

5    determination—demeanor—contains errors, and the IJ’s apparent

6    failure to consider Rashid’s corroborating evidence when

7    assessing his credibility further erodes confidence in the

8    credibility determination.

9           A. Demeanor

10          Although we “give particular deference to credibility

11   determinations         that    are   based      on     the     adjudicator’s

12   observation of the applicant’s demeanor, . . . we grant lesser

13   deference to credibility determinations that are based on an

14   analysis of testimony . . . [and] will reverse where . . . [a]

15   determination is based upon speculation or upon an incorrect

16   analysis of the testimony.”                Jin Chen v. U.S. Dep’t of

17   Justice, 426 F.3d 104, 113 (2d Cir. 2005) (internal quotation

18   marks and citations omitted).             We cannot defer to two of the

19   bases for the demeanor finding: one is simply incorrect, and

20   the other is speculative.

21          First,    the   BIA    affirmed    the   IJ’s   negative    demeanor

22   finding because the IJ observed numerous long pauses before

23   Rashid    answered     questions     on    cross-examination;      however,

                                           8
1    there were only three such pauses, and two occurred while

2    Rashid was questioned about a date discrepancy that the IJ

3    found to be a result of a translation error.             The attorney

4    for the Department of Homeland Security (“DHS”) questioned

5    Rashid about minutes from a local BNP committee meeting

6    reflecting that he had been elected press secretary from 2014

7    to 2015, which post-dated his arrival in the United States.

8    However, after the translator confirmed that the original

9    document read 2004 to 2005, the IJ stated that he could not

10   find    a   discrepancy   between       the   document   and   Rashid’s

11   testimony. The BIA thus erred in finding that Rashid’s pauses

12   while he was questioned about the inaccurately translated

13   dates reflected a lack of credibility.

14          Second, the demeanor finding is based on an analysis of

15   testimony, but is not grounded in the record.            The IJ stated

16   that Rashid did not distinguish his role as press secretary

17   from the roles of other rank-and-file BNP members, but the IJ

18   never asked Rashid to distinguish these duties from those of

19   a rank-and-file BNP member.         Cf. Ming Shi Xue, 439 F.3d at

20   125.    Moreover, the IJ did not elaborate on the role of a

21   rank-and-file member of the BNP, and it is unclear what the

22   role of an ordinary member of that political party would be.


                                         9
1    Rashid did testify that his role as local press secretary

2    included arranging meetings, hanging posters, recruiting, and

3    setting up microphones, which do not appear to be duties of

4    an ordinary member of a political party.

5        As for the IJ’s additional demeanor findings—that Rashid

6    was vague and nonresponsive when asked about his location

7    from August 2010 to January 2013 and why he returned from

8    Dhaka to Noakhali, and that he was evasive when asked about

9    the BNP’s affiliation with Islami Okiya Jote and Jammat-e-

10   Islami Bangladesh—Rashid’s hesitations, uncertainties, and

11   incompleteness    in    his    answers,            which    the    IJ     cited       as

12   supporting   a   finding           of    lack       of     credibility          appear

13   attributable,    at    least       in    part,      to     the    DHS    attorney’s

14   confusing phrasing and compound questions.

15       B. Corroboration

16       “An    applicant’s      failure           to   corroborate          his    or    her

17   testimony may bear on credibility, because the absence of

18   corroboration    in    general          makes      an    applicant       unable       to

19   rehabilitate testimony that has already been called into

20   question.” Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.

21   2007). Although the agency has an obligation to consider all

22   evidence   relevant    to     an    applicant’s          claim,     it        need   not


                                              10
1    “expressly parse or refute on the record each individual

2    argument or piece of evidence offered by the petitioner.”

3    Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006)

4    (internal quotation marks omitted). “[W]e presume that an IJ

5    has taken into account all of the evidence before him, unless

6    the record compellingly suggests otherwise.”             Xiao Ji Chen v.

7    U.S. Dep’t of Justice, 471 F.3d 315, 336 n.17 (2d Cir. 2006).

8          The   agency’s    treatment      of     Rashid’s      corroborating

9    evidence    further    erodes   confidence       in   the     credibility

10   determination.      The IJ did not address the weight to be

11   accorded to Rashid’s individualized corroborating evidence,

12   which included hospitalization records reflecting surgical

13   repair of an incised wound of the chest consistent with his

14   allegation of a 2009 attack.          Nor did the IJ’s alternative

15   reasons for denying relief—that Rashid did not sufficiently

16   establish harm rising to the level of persecution or that the

17   attackers were AL members—relieve the IJ of his obligation to

18   consider Rashid’s corroborating evidence in the context of

19   the   credibility      determination        because   the    alternative

20   reasoning assumed Rashid’s credibility as to important parts

21   of his allegations. The BIA did not cure the problem because

22   it neither adopted the alternatives, nor considered whether


                                      11
1    Rashid’s documentary evidence supported his credibility.

2         Given the substantiality of the errors and problems in

3    the agency’s reasoning noted above, we cannot conclude that

4    remand    would   be     futile.         The     uncompromised     adverse

5    credibility findings do not provide substantial support for

6    the adverse credibility determination. Lianping Li, 839 F.3d

7    at 149.

8         For the foregoing reasons, the petition for review is

9    GRANTED, the BIA’s decision is VACATED, and the case is

10   REMANDED for further proceedings.              As we have completed our

11   review, any stay of removal that the Court previously granted

12   in this petition is VACATED, and any pending motion for a

13   stay of removal in this petition is DISMISSED as moot.                 Any

14   pending request for oral argument in this petition is DENIED

15   in   accordance   with    Federal    Rule      of   Appellate    Procedure

16   34(a)(2), and Second Circuit Local Rule 34.1(b).

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




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