     16-2359
     Uddin-Nessa v. Sessions
                                                                                   BIA
                                                                            Schoppert, IJ
                                                                           A200 239 856
                               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 4th day of May, two thousand eighteen.
 5
 6   PRESENT:
 7            PIERRE N. LEVAL,
 8            RICHARD C. WESLEY,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   AHMED SHAFIQ UDDIN-NESSA, AKA
14   MOHAMED SHAFIQ AHMED,
15            Petitioner,
16
17                     v.                                        16-2359
18                                                               NAC
19   JEFFERSON B. SESSIONS, III,
20   UNITED STATES ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                      Gregory Marotta, Vernon, NJ.
25
26   FOR RESPONDENT:                      Chad A. Readler, Acting Assistant
27                                        Attorney General; Anthony P.
28                                        Nicastro, Assistant Director;
29                                        Sheri R. Glaser, Trial Attorney,
30                                        Office of Immigration Litigation,
31                                        United States Department of
32                                        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 Ahmed Shafiq Uddin-Nessa, a native and citizen

 6   of Bangladesh, seeks review of a June 17, 2016, decision of

 7   the   BIA   affirming   a   February     25,    2015,    decision   of   an

 8   Immigration    Judge    (“IJ”)   denying       asylum,   withholding     of

 9   removal, and relief under the Convention Against Torture

10   (“CAT”).     In re Ahmed Shafiq Uddin-Nessa, No. A200 239 856

11   (B.I.A. June 17, 2016), aff’g No. A200 239 856 (Immig. Ct.

12   N.Y. City Feb. 25, 2015).        We assume the parties’ familiarity

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

14         Under the circumstances of this case, we have reviewed

15   both the IJ’s and the BIA’s opinions “for the sake of

16   completeness.”    Wangchuck v. Dep’t of Homeland Sec., 448

17   F.3d 524, 528 (2d Cir. 2006).           The applicable standards of

18   review are well established.        8 U.S.C. § 1252(b)(4)(B); Xiu

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

20   “Considering the totality of the circumstances, and all

21   relevant factors, a trier of fact may base a credibility

22   determination on . . . the consistency between the


                                         2
1    applicant’s . . . written and oral statements . . . , the

2    internal consistency of each such statement, [and] the

3    consistency of such statements with other evidence of

 4   record . . . without regard to whether an inconsistency,

 5   inaccuracy, or falsehood goes to the heart of the

 6   applicant’s claim.”   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

 7   Lin, 534 F.3d at 163-64.

 8       Although the agency reasonably relied on Uddin-Nessa’s

 9   inconsistent statements regarding whether he had been

10   arrested in Bangladesh and Panama to question his

11   credibility, see Xiu Xia Lin, 534 F.3d at 165-66, it erred

12   when it declined to consider his cousin’s passport records

13   and his hospital records as corroborating evidence that he

14   offered to rehabilitate his credibility, see Biao Yang v.

15   Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s

16   failure to corroborate his or her testimony may bear on

17   credibility, because the absence of corroboration in

18   general makes an applicant unable to rehabilitate testimony

19   that has already been called into question.”).

20       “[H]owever, not every minor error requires a remand.

21   Certainly if the IJ explicitly adopts an alternative and

22   sufficient basis for her determination, no remand is


                                   3
1    required.”   Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d

2    391, 401 (2d Cir. 2005).   Thus, when an adverse credibility

3    determination results from “some agency findings infected

4    by legal error and others that are not, our decision to

5    uphold the agency decision or to remand for further

6    proceedings depends on how confidently we can predict that

7    the agency would reach the same decision absent the errors

8    that were made.”   Shunfu Li v. Mukasey, 529 F.3d 141, 150

9    (2d Cir. 2008) (internal quotation marks omitted).

10       In reaching an adverse credibility conclusion, the IJ

11   provided multiple reasons for finding Uddin-Nessa’s

12   testimony not credible; properly accounting for

13   corroborating evidence would not have changed the

14   conclusion that Uddin-Nessa was not credible.   Although the

15   passport records tended to place his cousin in Bangladesh

16   at the time of Uddin-Nessa’s arrest, the IJ also emphasized

17   her testimony was entitled to diminished weight because she

18   was an interested witness and her testimony only sought to

19   corroborate Uddin-Nessa’s inconsistent statements.

20   Certified Administrative Record (CAR) at 41–42.

21       Additionally, even if the IJ erred in failing to

22   explain why it did not consider Uddin-Nessa’s hospital


                                   4
 1   records to rehabilitate his credibility, the records would

 2   be insufficient to overcome the numerous omissions and

 3   implausible statements in his own testimony.      The IJ based

 4   its credibility determination on substantial and damning

 5   inconsistencies, including most notably Uddin-Nessa’s

 6   failure to reveal to U.S. authorities his fourteen-month

 7   detention in Panama or his arrest in Bangladesh in 2008.

 8   CAR at 39–40.   The IJ found his explanation for those

 9   omissions to be unpersuasive.       The IJ also found Uddin-

10   Nessa not credible based on the inconsistencies between his

11   testimony in his removal hearing, asylum application, and

12   credible fear interview with DHS.

13   Because the hospital records alone would be insufficient to

14   rehabilitate Uddin-Nessa’s credibility, we can confidently

15   predict that remand would be futile.

16       For the foregoing reasons, the petition for review is

17   DENIED and the BIA’s order is AFFIRMED.       As we have

18   completed our review, any stay of removal that the Court

19   previously granted in this petition is VACATED, and any

20   pending motion for a stay of removal in this petition is

21   DISMISSED as moot.   Any pending request for oral argument

22   in this petition is DENIED in accordance with Federal Rule


                                     5
1   of Appellate Procedure 34(a)(2), and Second Circuit Local

2   Rule 34.1(b).

3                              FOR THE COURT:
4                              Catherine O’Hagan Wolfe, Clerk




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