     17-2830
     Ahmed v. Barr
                                                                                    BIA
                                                                              Poczter, IJ
                                                                           A099 396 158

                          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 24th day of July, two thousand nineteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            RAYMOND J. LOHIER, JR.,
 9            RICHARD J. SULLIVAN,
10                 Circuit Judges.
11   _____________________________________
12
13   MUNIR AHMED,
14            Petitioner,
15
16                   v.                                          17-2830
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Richard W. Chen, New York, NY.
24
25   FOR RESPONDENT:                  Chad A. Readler, Acting Assistant
26                                    Attorney General; Nancy Friedman,
27                                    Senior Litigation Counsel; Kevin
28                                    J. Conway, Trial Attorney, Office
29                                    of Immigration Litigation, United
30                                    States Department of Justice,
31                                    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 Munir Ahmed, a native and citizen of Pakistan,

6    seeks review of an August 18, 2017, decision of the BIA

7    affirming a November 28, 2016, decision of an Immigration

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

9    relief under the Convention Against Torture (“CAT”).     In re

10   Munir Ahmed, No. A099 396 158 (B.I.A. Aug. 18, 2017), aff’g

11   No. A099 396 158 (Immig. Ct. N.Y. City Nov. 28, 2016).       We

12   assume the parties’ familiarity with the underlying facts and

13   procedural history in this case.

14       Under the circumstances of this case, we have considered

15   both the IJ’s and the BIA’s decisions.       See Wangchuck v.

16   Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006).    We

17   review the agency’s adverse credibility determination for

18   substantial evidence.   See 8 U.S.C. § 1252(b)(4)(B); Hong Fei

19   Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018).   “Considering

20   the totality of the circumstances, and all relevant factors,

21   a trier of fact may base a credibility determination on ...

22   the consistency between the applicant’s . . . written and

                                   2
1    oral statements . . . , the internal consistency of each such

2    statement, [and] the consistency of such statements with

3    other evidence of record . . . without regard to whether an

4    inconsistency, inaccuracy, or falsehood goes to the heart of

5    the   applicant’s   claim,    or   any   other   relevant   factor.”

6    8 U.S.C. § 1158(b)(1)(B)(iii).         “We defer . . . to an IJ’s

7    credibility determination unless, from the totality of the

8    circumstances, it is plain that no reasonable fact-finder

9    could make such an adverse credibility ruling.”          Xiu Xia Lin

10   v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei

11   Gao, 891 F.3d at 76.     The adverse credibility determination

12   is supported by substantial evidence.

13         Ahmed asserted that in 2011, the terrorist group Lashkar-

14   e-Taiba stalked, threatened, and beat him, and later fired

15   guns at his house, all because they overheard him praising

16   the   United   States.       The   agency   reasonably   relied   on

17   inconsistencies between Ahmed’s testimony and his documentary

18   evidence concerning what weapons his attackers were carrying

19   when they beat him and when his wife and children left

20   Pakistan.   See 8 U.S.C. § 1158(b)(1)(B)(iii).       As the agency

21   found, Ahmed testified that he was attacked with a knife and

22   saw no other weapons, but he submitted a police report that

                                        3
1    listed   himself   as   the   “applicant”    or   “informant”   and

2    reflected that he told the police that he saw men approach

3    his home “armed with fire weapons.”         And he testified that

4    his wife and Children left Pakistan in August 2012, but he

5    could not explain why his wife’s statement in support of his

6    application was attested to in Pakistan the next month.         The

7    agency was not required to accept Ahmed’s explanations that

8    the police report may have reflected a statement his brother

9    made or that he may have forgotten when his wife and children

10   left Pakistan.     See Majidi v. Gonzales, 430 F.3d 77, 80 (2d

11   Cir. 2005) (“A petitioner must do more than offer a plausible

12   explanation for his inconsistent statements to secure relief;

13   he must demonstrate that a reasonable fact-finder would be

14   compelled to credit his testimony.” (internal quotation marks

15   omitted)).

16       The agency also reasonably relied on the fact that

17   Ahmed’s application omitted his allegation that Lashkar-e-

18   Taiba members followed his daughter after he left Pakistan.

19   See Ming Zhang v. Holder, 585 F.3d 715, 726 (2d Cir. 2009)

20   (holding that the agency may “draw an adverse inference about

21   petitioner’s credibility based, inter alia, on h[is] failure

22   to mention” important details or events in prior statements).

                                      4
1    Although we have cautioned the agency about relying too

2    heavily on minor omissions, we find no error here because the

3    information concerned the only evidence of an ongoing threat

4    to Ahmed and his family by Lashkar-e-Taiba and the agency did

5    not err in considering it in combination with the other

6    inconsistencies.            See Hong Fei Gao, 891 F.3d at 78, 82

7    (holding that “probative value of a witness’s prior silence

8    on particular facts depends on whether those facts are ones

9    the witness would reasonably have been expected to disclose”

10   and that “[o]missions need not go to the heart of a claim to

11   be considered in adverse credibility determinations, but they

12   must    still   be     weighed   in    light          of   the    totality       of   the

13   circumstances and in the context of the record as a whole”).

14          Further, the agency did not err in finding the Ahmed’s

15   credibility as a whole was undermined by his filing of a false

16   application      for    amnesty       in       2006    and       using    that    false

17   application to obtain advance parole to visit Pakistan in

18   2011.     Cf. Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.

19   2007) (“[A] finding of fraudulent evidence redounds upon all

20   evidence the probative force of which relies in any part on

21   the    credibility      of    the     petitioner.”).               Although       false

22   statements      may    be    excused       if    they      are     made    to    escape

                                                5
1    persecution, Ahmed did not allege that he was in danger in

2    Pakistan at the time of the amnesty application.                       See Rui

3    Ying Lin v. Gonzales, 445 F.3d 127, 133 (2d Cir. 2006)

4    (“distinguish[ing]      .    .   .     between      the   presentation    of   a

5    fraudulent document in immigration court in support of an

6    asylum application and the use of a fraudulent document to

7    escape immediate danger or imminent persecution”—the latter

8    category being an unreasonable basis to doubt the applicant’s

9    credibility).

10       Having     questioned        Ahmed’s       credibility,      the     agency

11   reasonably     relied   on       his    failure      to    rehabilitate     his

12   testimony with reliable corroborating evidence.                     See Biao

13   Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An

14   applicant’s failure to corroborate his or her testimony may

15   bear on credibility, because the absence of corroboration in

16   general makes an applicant unable to rehabilitate testimony

17   that has already been called into question.”).                    The agency

18   did not err in declining to afford significant weight to the

19   statements from Ahmed’s wife and brother because they were

20   interested   witnesses       who       were   not    available   for     cross-

21   examination.    See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir.

22   2013) (deferring to agency’s decision to afford little weight

                                              6
1    to   spouse’s    letter     because   it   was    unsworn      and   from   an

2    interested witness); see also In re H-L-H- & Z-Y-Z-, 25 I. &

3    N. Dec. 209, 215 (BIA 2010) (finding that unsworn letters

4    from alien’s friends and family were insufficient to provide

5    substantial support for alien’s claims because they were from

6    interested      witnesses    not    subject      to    cross-examination),

7    overruled on other grounds by Hui Lin Huang v. Holder, 677

8    F.3d 130, 133-38 (2d Cir. 2012).                 Moreover, as discussed

9    above, those documents and one of the police reports either

10   conflicted      with   Ahmed’s      testimony     or    did    not   contain

11   information to corroborate his statements.                    See Y.C., 741

12   F.3d at 334 (“We defer to the agency’s determination of the

13   weight afforded to an alien’s documentary evidence.”).

14        The remainder of Ahmed’s documentary evidence does not

15   rehabilitate his claim.            The medical documentation, though

16   not explicitly considered by the IJ, confirms that Ahmed has

17   a scar compatible with a knife wound, but does not otherwise

18   corroborate his claim that he was attacked in 2011 by members

19   of a terrorist group on account of his pro-American views.

20   Moreover, the country conditions evidence is generalized and

21   does not establish that Lashkar-e-Taiba targets returning

22   Pakistani nationals who have pro-American views; rather, the

                                           7
1    record reflects that the group engages in mass violence that

2    broadly affects both Pakistan and India.              Ahmed claims that

3    a   newspaper       article     allegedly     covering        his    attack

4    corroborates his claim, but the article is undated and appears

5    to be based solely on Ahmed’s own statements.

6        Given     the   multiple    inconsistencies       and     the   lack   of

7    reliable     and    independent         corroboration,        the   adverse

8    credibility     determination      is     supported      by    substantial

9    evidence.     See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,

10   534 F.3d at 165-66.       That determination is dispositive of

11   asylum, withholding of removal, and CAT protection because

12   all three claims for relief are based on the same factual

13   predicate.     See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d

14   Cir. 2006).

15       For the foregoing reasons, the petition for review is

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

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

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

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

20

21

22

                                         8
1   in this petition is DENIED in accordance with Federal Rule of

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

3   34.1(b).

4                               FOR THE COURT:
5                               Catherine O’Hagan Wolfe
6                               Clerk of Court




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