07-0600-ag
Zaman v. Mukasey
                       UNITED STATES COURT OF APPEALS
                           FOR THE SECOND CIRCUIT

                                    _____________________

                                        August Term, 2007
     (Submitted: December 5, 2007                                 Decided: January 23, 2008 )

                                      Docket No. 07-0600-ag

                                    _____________________

                                     MOHAMMAD ZAMAN,
                                                                Petitioner,

                                                -v.-

                          MICHAEL B. MUKASEY, Attorney General,*
                                                       Respondent.
                                _______________________

BEFORE:                STRAUB and HALL, Circuit Judges, and HAIGHT, District Judge.**


       Petition for review of a final decision of the Board of Immigration Appeals affirming the

denial by an Immigration Judge of the petitioner’s application for withholding of removal and

relief pursuant to the Convention Against Torture. The Immigration Judge (“IJ”) expressed

“grave doubts” about the petitioner’s credibility after the petitioner submitted two identical-

appearing photographs that he claimed were distinct photographs taken six years apart, but the IJ

did not specifically state the grounds for denying the application. Given the analysis as

explained in his decision, we hold that the IJ here made the sort of “explicit credibility finding”


       *
        Attorney General Michael B. Mukasey is substituted for former Attorney General
Alberto Gonzales pursuant to Fed. R. App. P. 43(c)(2).
       **
          The Honorable Charles S. Haight, Jr., United States District Judge for the Southern
District of New York, sitting by designation.
required by Diallo v. INS, 232 F.3d 279, 290 (2d Cir. 2000). We also hold that the adverse

credibility determination was supported by substantial evidence.

               Petition for review denied.

               AMY N. GELL, Gell & Gell, New York, NY, for Petitioner.

               PETER D. KEISLER , Civil Division, U.S. Department of Justice, (Jeffrey J.
               Bernstein, Rebecca A. Niburg, Office of Immigration Litigation, on the brief), for
               Respondent.


PER CURIAM:

       Petitioner Mohammad Zaman, a native and citizen of Pakistan, seeks review of a January

22, 2007 order of the Board of Immigration Appeals (“BIA”) affirming the August 20, 2005

decision of IJ George T. Chew denying petitioner’s application for withholding of removal and

relief under the Convention Against Torture (“CAT”).1 In re Mohammad Zaman, No. A95 959

889 (B.I.A. Jan. 22, 2007), aff’g No. A95 959 889 (Immig. Ct. N.Y. City, Aug. 20, 2005).

Zaman asks this Court to vacate the agency’s decision because it was not supported by

substantial evidence. Both Zaman and the Government assume, without discussion, that the IJ’s

sparse oral decision, and the BIA’s order affirming the decision, contained an “explicit

credibility finding” sufficient under Diallo v. INS, 232 F.3d 279, 290 (2d Cir. 2000), to alert us

to the grounds for the denial of the withholding and CAT claims.2 We agree with both parties’


       1
        Zaman conceded that his application for asylum was untimely in that he failed to file it
within one year of his entry into the United States. See 8 U.S.C. § 1158(a)(2)(B). He does not
challenge the pretermission of his asylum claim in his brief to this Court.
       2
          Zaman states in his brief that the BIA did not mention credibility in its order affirming
the IJ’s decision and that the IJ “never specifically enumerated” what doubts he had about
Zaman’s credibility. Zaman does not argue, however, that the agency failed to comply with
Diallo.

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assumptions that the agency did make the required explicit credibility determination, and we

write to explain why, in this particular case, the IJ’s decision satisfied Diallo. We further

conclude that the adverse credibility determination was supported by substantial evidence in the

record.

                                           I. Background

          Zaman was admitted into the United States as a nonimmigrant visitor in August 1999 and

was placed in removal proceedings in February 2003. In 2004 he filed an application for

asylum, withholding of removal, and CAT relief. Zaman alleged that he was persecuted by

members of the Pakistan Muslim League (“PML”), including his own brother, on account of his

membership in the Pakistan Peoples Party (“PPP”).

          At an August 2005 hearing, Zaman introduced, inter alia, a copy of his passport,

allegedly issued in June 1996, and a PPP membership card, allegedly issued in January 1990.

The attorney for the Government asked Zaman when the picture affixed to the passport was

taken, and Zaman replied that it was taken in June 1996, when the passport was issued. The

attorney for the Government then confirmed that Zaman received his PPP card in 1990. The

following colloquy then occurred:

                         [Attorney for the Government]: Okay. Can you explain
                 how a photograph, the same photograph of a document that was
                 issued in 1990 appears in your passport that was issued in 1996?

                        [Zaman]: Same photograph.

                         [Attorney for the Government]: Right, but you just told me
                 this photograph wasn’t taken until ’96. The card was issued in
                 1990. That’s impossible.




                                                  3
                      [Zaman]: No, no. That’s a second photo. The passport
               photograph was taken before and the other photograph got after.
               [sic] Those are different photographs.

Hearing Tr. Aug. 20, 2005, at 26.

       After Zaman’s testimony, the IJ issued a short oral decision that denied the withholding

and CAT claims. With respect to the merits of the withholding claim, the IJ stated that Zaman

“ha[d] not met the standard [for] demonstrating that he would [] more likely than not be

persecuted on the basis of his political opinion.” He reasoned:

               In this case, the Court has grave doubts concerning the
               respondent’s credibility. In fact, his [application for asylum and
               withholding] is skeletal at best. He apparently had some problems
               with his brother who wanted to kill him for his share of the
               property. The Court is not convinced that the respondent was a
               political leader or worker as he states he was. It is very significant
               that if the respondent was fleeing persecution from Pakistan that he
               would have applied for asylum upon entry to the United States. He
               only submitted an application on April 27th, 2004 . . . . And
               significantly, . . . when [the PPP card is] compared to the photo in
               his passport, [it] is the identical photo a[nd] the background is
               identical. Yet, the respondent maintains that the photo was taken
               in 1996 at the same time his passport was taken. It’s patently
               impossible. It’s very clear that the [PPP] card . . . was generated
               solely for the purpose of this hearing and it’s more likely than not,
               not a valid document.

In re Mohammad Zaman, No. A95 959 889 (Immig. Ct. N.Y. City, Aug. 20, 2005). The IJ also

found that Zaman had provided no evidence that he would be tortured if he returned to Pakistan.

       Zaman appealed the IJ’s decision to the BIA, arguing that the IJ “erred in not finding

Respondent’s testimony credible,” in that he “placed too much weight on unreasonably minor

points.” The BIA dismissed the appeal, concluding that there was “no clear error in the

Immigration Judge’s factual findings regarding the nature of the respondent’s past experiences in

Pakistan, and the likelihood of his being harmed in the future.” In re Mohammad Zaman, No.

                                                 4
A95 959 889 (B.I.A. Jan. 22, 2007). It also found that “[t]he respondent’s political experiences

were rightfully called into question by the Immigration Judge.” Id.

       Zaman petitions for review of the BIA’s order.

                                          II. Discussion

A. Standard of Review

       When the BIA does not expressly “adopt” the IJ’s decision, but “its brief opinion closely

tracks the IJ’s reasoning,” this Court may consider both the IJ’s and the BIA’s opinions “for the

sake of completeness.” Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir. 2006). This Court

reviews the agency’s factual findings under the substantial evidence standard, treating them as

“conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.”

8 U.S.C. § 1252(b)(4)(B); see, e.g., Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289

(2d Cir. 2007). However, we will vacate and remand for new findings if the agency’s reasoning

or its fact-finding process was sufficiently flawed. See Cao He Lin v. U.S. Dep’t of Justice, 428

F.3d 391, 406 (2d Cir. 2005).

B. Diallo v. INS

       In Diallo, this Court found that, when evaluating the sufficiency of the evidence

presented by an asylum candidate, an IJ must: (1) “decide explicitly” whether or not the

candidate’s testimony was credible (without relying exclusively on the lack of corroborating

evidence); and, if credible, (2) determine whether additional corroboration is nonetheless

necessary for the candidate to meet his or her burden of proof. 232 F.3d at 290. This Court

explained that an explicit credibility determination is important to ensure that an alien receives

the “potential benefit” of succeeding on credible testimony alone, as well as to ensure that


                                                 5
appellate review of such a determination is preserved. Id. at 287. Our review is frustrated when

it is unclear whether the agency has made an adverse credibility determination—for example,

when an IJ notes problems with parts of an applicant’s story that go to the applicant’s credibility

but does not make the ultimate conclusion that the entirety of the testimony suffers from a lack

of credibility.3 Vague, unclear, and passing statements do not suffice to fulfill the agency’s

obligation to “rule explicitly on the credibility of [a petitioner’s] testimony.” Id.; see also Diallo

v. Gonzales, 439 F.3d 764, 766 (7th Cir. 2006) (explaining that a “passing reference implying

doubt” is not an “express credibility finding” (internal quotation marks omitted)). After all, we

limit our review to the reasons articulated by the agency and cannot “assume a hypothetical basis

for [its] determination.” Cao He Lin, 428 F.3d at 400.

       Nevertheless, we conclude that the IJ’s analysis in the present case was sufficient to

qualify as an “explicit credibility finding.” The IJ expressed his doubts about Zaman’s

credibility and cited three reasons for these doubts: (1) the asylum application was “skeletal at

best”; (2) Zaman waited several years to apply for asylum; and (3) the PPP card was fraudulent.

There was no other analysis in this atypically short oral decision that would lead this Court to

conclude that the IJ relied on grounds other than credibility. Moreover, that the IJ’s doubts were

“grave,” and that he found Zaman’s explanations “patently impossible” leave no doubt that his

remarks about Zaman’s credibility were not offhand. Finally, while the BIA’s order does not

explicitly tell us whether the IJ made an adverse credibility determination, neither does it


       3
         While Zaman’s application was filed on April 27, 2004, we note that for asylum and
withholding applications filed after May 11, 2005, the effective date of the REAL ID Act of
2005, Pub. L. No. 109-13, 119 Stat. 231, there is a rebuttable presumption on appeal that a
witness is credible “if no adverse credibility determination is explicitly made” by the IJ. 8
U.S.C. § 1158(b)(1)(B)(iii); see also 8 U.S.C. § 1231(b)(3)(C).

                                                  6
indicate that the IJ’s decision was anything else. For all of these reasons, we find that the agency

made the sort of “explicit credibility finding” required by Diallo in order to provide this Court

with a meaningful opportunity for review.4 See Diallo, 232 F.3d at 287; cf. Poradisova v.

Gonzales, 420 F.3d 70, 77 (2d Cir. 2005) (“[W]e require a certain minimum level of analysis

from the IJ and BIA opinions denying asylum, and indeed must require such if judicial review is

to be meaningful.”); Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 68 (2d Cir. 2002)

(“When the Board decides a case . . . using summary language with little explanation for the

conclusion reached, intelligible appellate review is made difficult.”).

C. Withholding of Removal Claim

       To qualify for withholding of removal, Zaman would have to show that it is more likely

than not that his life or freedom would be threatened in Pakistan because of his political opinion.

See 8 U.S.C. § 1231(b)(3)(A). The agency’s determination that Zaman did not meet his burden

because he lacked credibility is supported by substantial evidence. The photographs on Zaman’s

1996 passport and 1990 PPP membership card appear to be identical. The IJ gave Zaman an

opportunity to explain the similarity of the photos. Zaman testified that, despite their

appearances, the photograph on the PPP card and the photograph on the passport were different



       4
         The facts of the present case are distinguishable from Diallo in that the IJ in Diallo
based her credibility determination on Diallo’s “inability or unwillingness to provide supporting
documentation,” and further noted that Diallo had not offered “specific, credible detail” about
his experiences. 232 F.3d at 284. The rule that IJs must make an “explicit credibility finding”
thus arose in the context of an agency decision that seemingly ignored the proposition that an
applicant can meet his burden of proof based on credible testimony alone. We think the rule
holds equal force in the context of any agency decision that, like the present one, denies an
application for relief based on a failure of proof, no matter whether lack of corroboration is a
stated concern of the IJ. See, e.g., Utama v. Gonzales, 235 Fed. Appx. 810, 811-12 (2d Cir.
2007) (summary order).

                                                 7
because “[t]he passport photograph was taken before . . . the other photograph.” It was

appropriate for the IJ to reject this explanation, as no reasonable factfinder would be compelled

to credit the notion that an identical photograph on a 1990 membership card could be taken after

the original of the photograph was produced in 1996 for the issuance of a passport. See Majidi v.

Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005); see also Siewe v. Gonzales, 480 F.3d 160, 169 (2d

Cir. 2007). It was, moreover, reasonable for the IJ to infer that the PPP membership card was

fraudulent because that “inference [was] made available . . . by record facts,” i.e., the identical

nature of the photographs appearing on documents allegedly issued more than six years apart.

Siewe, 480 F.3d at 169.

       The invalidity of the PPP membership card was a proper basis for discrediting the

remainder of Zaman’s testimony.5 Once an IJ concludes that a document is false, he is “free to

deem suspect other documents (and to disbelieve other testimony) that depend for probative

weight upon [the applicant’s] veracity.” Id. at 170; see also In re O-D-, 21 I. & N. Dec. 1079

(B.I.A. 1998). The PPP card does not fall within any exceptions to this rule. First, there was no

testimony or evidence that was “independently corroborated” and that the IJ failed to assess.

Siewe, 480 F.3d at 170. Second, the PPP card was not created to “escape persecution,” but

instead was “submitted as genuine to the IJ.” Id. (emphasis removed). Third, Zaman’s PPP card

was not “wholly ancillary to [his] claim, but was an essential piece of evidence offered to



       5
         We are not convinced that the other two grounds for the adverse credibility
determination—that Zaman’s application was skeletal and that he waited years to file an asylum
application—are proper bases, by themselves, for an adverse credibility determination.
Nevertheless, because we are confident that the IJ here would have found Zaman incredible even
without relying on these additional grounds, we can confidently conclude that there would not be
a different result on remand. See Cao He Lin, 428 F.3d at 395.

                                                  8
corroborate his alleged political opinion.” Id. Fourth, the false evidence at issue did not include

“statement[s] made during an airport interview.” Id. at 171. Finally, nothing in the record

indicates that Zaman “d[id] not know, and ha[d] no reason to know, [the PPP card was]

inauthentic.” Id. In fact, Zaman vouched for the card’s authenticity. In light of the foregoing, it

was permissible for the IJ to conclude that the party ID card was fraudulent, based on the

similarity between the two photos, and to rely on this conclusion to call into question the other

aspects of Zaman’s testimony. See id. at 170-71.

       Finally, we note that after the briefs were submitted in this case, but before it was

decided, another panel of this Court issued an opinion in Niang v. Mukasey, No. 05-0136-ag, ___

F.3d ___, 2007 WL 4409785 (2d Cir. Dec. 19, 2007). There we held that “where . . . an

applicant’s testimony is otherwise credible, consistent and compelling, the agency cannot base

an adverse credibility determination solely on a speculative finding that the applicant has

submitted inauthentic documents in support of his application.” Id. at *1. Niang is

distinguishable from the case at hand. First, in that case, the IJ based his determination that the

document in question appeared to be fraudulent on four reasons, all of which this Court found to

be “problematic.” Id. at *6. In contrast, as explained above, the IJ’s determination in this case

that the party ID card was fraudulent was supported by substantial evidence. Cf. id. at *5 (“An

IJ is fully entitled to make findings concerning the authenticity of submitted evidence, based on

her own examination and her professional analysis. Such findings will ordinarily merit

deference.”). Second, the IJ in Niang explicitly found the applicant’s testimony to be “otherwise

credible,” id. at *5-6, whereas in the current case, the IJ made no such finding. In fact, the IJ

here gave reasons other than the fraudulent ID card for doubting Zaman’s credibility.


                                                  9
Accordingly, Niang is not controlling in the present case, and the IJ properly found that Zaman’s

submission of a fraudulent document undermined his overall credibility. See Siewe, 480 F.3d at

170-71.

D. CAT Claim

       Substantial evidence supports the IJ’s determination that Zaman failed to demonstrate

that it was more likely than not that he would be tortured if he returned to Pakistan. See

Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 134 (2d Cir. 2003). Zaman argues that the agency

ignored evidence relevant to the CAT claim, but he does not point to anything in the record to

support the claim. Accordingly, we affirm the denial of Zaman’s claim for relief under the CAT.

                                         III. Conclusion

       For the foregoing reasons, the petition for review is denied.




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