     17-2639
     Islam v. Whitaker
                                                                                    BIA
                                                                              Poczter, IJ
                                                                           A206 263 716
                              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 8th day of February, two thousand nineteen.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            JOSÉ A. CABRANES,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   NAZRUL ISLAM,
14            Petitioner,
15
16                       v.                                      17-2639
17                                                               NAC
18   MATTHEW G. WHITAKER, ACTING
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Salim Sheikh, New York, NY.
24
25   FOR RESPONDENT:                     Chad A. Readler, Acting Assistant
26                                       Attorney General; Melissa Neiman-
27                                       Kelting, Assistant Director; Jacob
28                                       A. Bashyrov, Trial Attorney,
29                                       Office of Immigration Litigation,
30                                       United States Department of
31                                       Justice, Washington, 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    Nazrul   Islam,   a   native   and   citizen   of

6    Bangladesh, seeks review of a July 25, 2017, decision of the

7    BIA affirming an October 4, 2016, decision of an Immigration

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

9    of removal, and relief under the Convention Against Torture

10   (“CAT”).    In re Nazrul Islam, No. A 206 263 716 (B.I.A. July

11   25, 2017), aff’g No. A 206 263 716 (Immig. Ct. N.Y. City Oct.

12   4, 2016).      We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14       Under the circumstances of this case, we have reviewed

15   both the BIA’s and IJ’s decisions.          See Yun-Zui Guan v.

16   Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). We review adverse

17   credibility    determinations   under   a   substantial   evidence

18   standard.     See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.

19   Sessions, 891 F.3d 67, 76 (2d Cir. 2018). The governing REAL

20   ID Act credibility standard provides as follows:

21
                                     2
 1       Considering the totality of the circumstances, and
 2       all relevant factors, a trier of fact may base a
 3       credibility determination on the demeanor, candor,
 4       or responsiveness of the applicant or witness,. . .
 5       the consistency between the applicant’s or witness’s
 6       written and oral statements . . . , the internal
 7       consistency of each such statement, the consistency
 8       of such statements with other evidence of record .
 9       . . , and any inaccuracies or falsehoods in such
10       statements, . . . or any other relevant factor.
11
12   8 U.S.C. § 1158(b)(1)(B)(iii).         “We defer . . . to an IJ’s

13   credibility determination unless . . . it is plain that no

14   reasonable fact-finder could make such an adverse credibility

15   ruling.”   Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.

16   2008).     The   agency   reasonably    relied    on   inconsistencies

17   between Islam’s credible fear interview, his testimony, and

18   his family’s letters, as well as his demeanor and lack of

19   reliable corroborating evidence.

20       The      agency   reasonably       relied    on    inconsistencies

21   regarding the alleged incidents of past persecution.              See 8

22   U.S.C. § 1158(b)(1)(B)(iii).       Islam initially testified that

23   his father was present at the first incident, but when

24   questioned    about   what   happened    to     him,   he   changed   his

25   testimony and denied that his father was there.             In addition

26   to his changing testimony, his final answer was inconsistent

                                        3
1    with his father’s letter, which alleged that his father was

2    present.         As to the fourth alleged incident, when asked

3    whether it was him or his father who was threatened with a

4    knife,      he    changed    his     testimony    twice      and   was   again

5    inconsistent       with     his    father’s   letter.        These   material

6    inconsistencies        in     the     examples    of     past      persecution

7    constitute substantial evidence for the adverse credibility

8    determination.       See Xian Tuan Ye v. Dep’t of Homeland Sec.,

9    446 F.3d 289, 295 (2d Cir. 2006).

10         The        agency’s         determination     is       bolstered     by

11   inconsistencies between Islam’s credible fear interview and

12   his testimony.         See 8 U.S.C. § 1158(b)(1)(B)(iii).                Islam

13   recounted only two of the four incidents of persecution at

14   the credible fear interview, even though he was asked if there

15   were other incidents.             Islam’s testimony and his answer at

16   the interview were also inconsistent as to how many of the

17   attackers he knew.          The agency did not err in relying on the

18   credible fear interview when assessing credibility because

19   the    interview       record        “display[ed]      the    hallmarks     of

20   reliability.”       Ming Zhang v. Holder, 585 F.3d 715, 725 (2d

21   Cir. 2009).         The interview record appears to be nearly
                                             4
1    verbatim in a question and answer format; Islam was asked

2    thoroughly about past persecution and future fears; and Islam

3    had access to a Bengali interpreter and did not express any

4    issues with the interpretation.         The agency was not required

5    to credit Islam’s explanation that the record was incomplete

6    or that he was tired.         See Majidi v. Gonzales, 430 F.3d 77,

7    80-81 (2d Cir. 2005) (“A petitioner must do more than offer

8    a plausible explanation for his inconsistent statements to

9    secure relief; he must demonstrate that a reasonable fact-

10   finder would be compelled to credit his testimony.” (internal

11   quotation marks and citations omitted)).

12       The     adverse     credibility     determination       is   further

13   bolstered by the IJ’s demeanor finding, to which we defer.

14   Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d Cir.

15   2005).      The record supports the IJ’s finding that Islam

16   testified    smoothly    on    direct   examination   but    repeatedly

17   claimed he could not understand the interpretation on cross-

18   examination.

19       Finally, Islam’s corroborating evidence was insufficient

20   to rehabilitate his credibility.         See Biao Yang v. Gonzales,

21   496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s failure to
                                         5
1    corroborate his . . . testimony may bear on credibility,

2    because the absence of corroboration in general makes an

3    applicant unable to rehabilitate testimony that has already

4    been called into question”).       The IJ reasonably afforded

5    diminished weight to letters from Islam’s family and friends

6    in Bangladesh because their authors were not subject to cross-

7    examination and the letters from Islam’s father and brother

8    were inconsistent with Islam’s testimony. See Y.C. v. Holder,

9    741 F.3d 324, 332, 334 (2d Cir. 2013) (holding that the weight

10   of evidence is generally in agency’s discretion and deferring

11   to agency’s decision to give limited weight to letter from

12   applicant’s spouse).

13       Given the inconsistencies within and between Islam’s

14   testimony, credible fear interview, and documentary evidence

15   and the lack of reliable corroborating evidence, the totality

16   of the circumstances supports the agency’s ruling.       See Xiu

17   Xia Lin, 534 F.3d at 167.     Because Islam’s claims were all

18   based on the same factual predicate, the adverse credibility

19   determination   is   dispositive   of   asylum,   withholding   of

20   removal, and CAT relief.     Paul v. Gonzales, 444 F.3d 148,

21   156-57 (2d Cir. 2006).
                                    6
1        For the foregoing reasons, the petition for review is

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

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

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

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

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

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

8    34.1(b).

 9                               FOR THE COURT:
10                               Catherine O’Hagan Wolfe,
11                               Clerk of Court




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