     17-117
     Dhali v. Sessions
                                                                                    BIA
                                                                          Christensen, IJ
                                                                          A205 879 064


                              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 27th day of June, two thousand eighteen.
 5
 6   PRESENT:
 7            RALPH K. WINTER,
 8            GUIDO CALABRESI,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   HARUN DHALI,
14
15                             Petitioner,
16
17                       v.                                      17-117
18                                                               NAC
19
20   JEFFERSON B. SESSIONS III,
21   UNITED STATES ATTORNEY GENERAL,
22
23                 Respondent.
24   _____________________________________
25
26   FOR PETITIONER:                         Khagendra Gharti-Chhetry,
27                                           Chhetry & Associates, P.C., New
28                                           York, NY.
 1
 2   FOR RESPONDENT:                 Chad A. Readler, Acting
 3                                   Assistant Attorney General;
 4                                   Anthony C. Payne, Assistant
 5                                   Director; Kathleen Kelly
 6                                   Volkert, Trial Attorney, Office
 7                                   of Immigration Litigation,
 8                                   United States Department of
 9                                   Justice, Washington, DC.
10
11       UPON DUE CONSIDERATION of this petition for review of a

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

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

14   is DENIED.

15       Petitioner      Harun    Dhali,       a    native     and    citizen   of

16   Bangladesh, seeks review of a December 13, 2016, decision of

17   the BIA affirming a March 6, 2016, decision of an Immigration

18   Judge   (“IJ”)     denying    Dhali’s         application       for   asylum,

19   withholding   of   removal,    and       relief   under    the    Convention

20   Against Torture (“CAT”). In re Harun Dhali, No. A205 879 064

21   (B.I.A. Dec. 13, 2016), aff’g No. A205 879 064 (Immig. Ct.

22   N.Y. City Mar. 6, 2016).      We assume the parties’ familiarity

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

24       Under the circumstances of this case, we have reviewed

25   both the IJ’s and the BIA’s decisions “for the sake of

26   completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d

27   524, 528 (2d Cir. 2006).      The applicable standards of review


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

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

3         The   REAL   ID   Act    provides    that    the    agency    must

4    “[c]onsider[] the totality of the circumstances,” and may

5    base a credibility finding on inconsistencies or omissions in

6    an applicant’s or his witness’s statements, “without regard

7    to whether” they go “to the heart of the applicant’s claim.”

8    8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-

9    64, 166-67. “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) (emphasis added) (citation and

14   internal quotation marks omitted).           “We defer . . . to an

15   IJ’s credibility determination unless . . . it is plain that

16   no   reasonable   fact-finder     could    make   such    an    adverse

17   credibility ruling.”    Xiu Xia Lin, 534 F.3d at 167.           For the

18   reasons that follow, we conclude that the agency did not err

19   in finding Dhali not credible.

20        Initially, the agency reasonably relied on both the

21   inconsistency     between     Dhali’s     application     and     party

22   certificate about whether he held any leadership positions in


                                       3
1    the party and upon the omission of Dhali’s past harm from the

2    party certificate.      Id. at 163-67.        Dhali stated in his

3    application that he held leadership roles in the Jatiya Party,

4    but his party certificate states only that he was a member of

5    the National Party Mohakhali Thana Unit Committee. Moreover,

6    although the party certificate postdates Dhali’s alleged

7    persecution, it fails to mention that he suffered harm because

8    of his party activities.        The agency was not required to

9    credit Dhali’s explanation that he had requested proof of

10   only his party membership because, as the IJ observed, if

11   Dhali   had   held    any   leadership     positions     or   suffered

12   persecution for his party activities, this information would

13   be expected to be included in his party certificate. Majidi,

14   430 F.3d at 80.

15       The   agency     also   reasonably     based   the    credibility

16   determination on an inconsistency between Dhali’s application

17   and testimony about the political affiliations of the men who

18   allegedly extorted him.        Xiu Xia Lin, 534 F.3d at 163-64.

19   While Dhali asserted in his application that two Awami League

20   terrorists    had   extorted   him,   he   testified   that   one   man

21   belonged to the Bangladesh Nationalist Party and the other to




                                       4
1    the Awami League.   Dhali did not explain this inconsistency.

2    Majidi, 430 F.3d at 80.

3        The agency also reasonably relied on the discrepancies

4    between Dhali’s application, testimony, and credible fear

5    interview about whether he was targeted for his political

6    activities and what these activities entailed. Ming Zhang v.

7    Holder, 585 F.3d 715, 724-25 (2d Cir. 2009). First, although

8    Dhali stated in his application and testimony that he was

9    targeted for extortion because of his support for the Jatiya

10   Party, he stated during his credible fear interview that he

11   was targeted because he built an expensive home in his

12   village.    Second,   Dhali’s   testimony   and   credible    fear

13   interview statements were inconsistent about whether his

14   assailants ever mentioned his political activities.          Third,

15   as noted above, Dhali asserted in his application that he

16   held leadership positions in the Jatiya Party, but stated

17   during his credible fear interview that his party activities

18   consisted of posting pictures.      The agency was not required

19   to credit Dhali’s explanation that he misspoke during his

20   credible fear interview because he had a fever.     Majidi, 430

21   F.3d at 80. The IJ correctly observed that Dhali’s interview




                                     5
1    record displayed the requisite “hallmarks of reliability.”

2    Ming Zhang, 585 F.3d at 725.

3          Finally, the IJ did not err by finding that Dhali’s party

4    certificate and joining letter were questionable on their

5    face,   likely   fraudulent,    and       further    undermined   Dhali’s

6    credibility.     Borovikova v. U.S. Dep’t of Justice, 435 F.3d

7    151, 157-58 (2d Cir. 2006).       As the IJ observed, while Dhali

8    claimed that his party certificate was from 2012 and that his

9    party-joining letter was from 1987, both documents were in

10   near-identical condition, appeared to have been printed from

11   a computer, and were on the same letterhead.

12         Given the foregoing findings, the adverse credibility

13   determination     is     supported       by    the   “totality    of   the

14   circumstances.”     Xiu Xia Lin, 534 F.3d at 167.            Dhali does

15   not challenge the agency’s finding that his corroborating

16   evidence was insufficient to rehabilitate his credibility and

17   has therefore waived review of that finding in this Court.

18   See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998).

19   The   credibility      determination      is   dispositive   of   asylum,

20   withholding of removal, and CAT relief because all three

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

22   Gonzales, 444 F.3d 148, 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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