     15-780
     Hossen v. Lynch
                                                                                        BIA
                                                                                   Straus, IJ
                                                                               A205 081 841
                            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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   23rd day of May, two thousand sixteen.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            REENA RAGGI,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   MOFAZZAL HOSSEN,
14            Petitioner,
15
16                     v.                                            15-780
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22   FOR PETITIONER:           Joshua Bardavid, Esq.,
23                             New York, New York.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; Stephen
27                                       J. Flynn, Assistant Director; Evan
28                                       P. Schultz, Trial Attorney, Office
29                                       of Immigration Litigation, United
30                                       States Department of Justice,
31                                       Washington, D.C.
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 is

4    DENIED.

5           Petitioner Mofazzal Hossen, a native and citizen of

6    Bangladesh, seeks review of a February 19, 2015, decision of

7    the    BIA    affirming    a   February    28,   2013,    decision     of    an

8    Immigration Judge (“IJ”) denying Hossen’s application for

9    asylum, withholding of removal, and relief under the Convention

10   Against Torture (“CAT”).           In re Mofazzal Hossen, No. A205 081

11   841 (B.I.A. Feb. 19, 2015), aff’g No. A205 081 841 (Immig. Ct.

12   Hartford Feb. 28, 2013).           We assume the parties’ familiarity

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

14          Given the circumstances of this case, we have considered

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

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

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

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

19   Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

20          Under the REAL ID Act of 2005, the agency may, in light of

21   “the    totality     of    the     circumstances,”       base    an   adverse
                                            2
1    credibility determination on an asylum applicant’s “demeanor,

2    candor, or responsiveness,” the plausibility of his account,

3    and inconsistencies in his statements, “without regard to

4    whether”    those    determinations     go   “to   the    heart     of   the

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

6    Lin v. Mukasey, 534 F.3d 162, 165 (2d Cir. 2008).                Under the

7    “substantial evidence” standard of review, “[w]e defer . . .

8    to an IJ’s credibility determination unless, from the totality

9    of the circumstances, it is plain that no reasonable fact-finder

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

11   534 F.3d at 165-66, 167.

12       Here, the agency’s adverse credibility determination is

13   supported    by     substantial    evidence.       First     the    agency

14   reasonably   relied     on   the   inconsistencies       among     Hossen’s

15   testimony and his credible fear interview, asylum application,

16   and parents’ letters regarding the severity of his injuries

17   after an altercation with members of the rival political party,

18   the Awami League.      At the merits hearing, the IJ asked Hossen

19   to describe his injuries.          Hossen responded that he “had

20   extreme pains.”       The IJ inquired if there was “[a]nything

21   else,” and Hossen said, “They hit me on my head.           I got fainted,
                                         3
1    I mean, and defenseless.     And I found myself in my home later.”

2    The IJ confirmed that Hossen was knocked unconscious; Hossen

3    responded, “Yes, I was unconscious when I fell on the ground

4    and I don’t remember anything after that.”          Certified Admin.

5    Rec. (“CAR”) 219-20).        This account conflicted with his

6    credible fear interview, during which he said he was beaten but

7    “not very much injured.”      Id. at 364.      Similarly, his asylum

8    application referenced the beating, but omitted being knocked

9    unconscious.     See id. at 276.       Letters from Hossen’s parents

10   confirmed Hossen’s beating, stated that they “brought him home

11   wounded,” and that he was “under the care of a local doctor,”

12   but   likewise    omitted   any   mention    that   he   was   knocked

13   unconscious.     Id. at 340; see also id. at 342.    When confronted

14   with the inconsistencies, Hossen said that the asylum officer

15   asked whether he was “greatly injured” and he answered no

16   because he was “not taken to the hospital,” and that someone

17   else wrote his parents’ letters because they are illiterate.

18   Id. at 222.    A reasonable adjudicator would not be compelled

19   to credit these explanations, particularly because as discussed

20   below, the record reflects other inconsistent evidence related

21   to the beating.    See Majidi v. Gonzales, 430 F.3d 77, 79-80 (2d
                                        4
1    Cir. 2005).

2        Hossen argues that his testimony reflects that he may have

3    become unconscious as a result of fainting, rather than being

4    knocked unconscious by his assailant.   But irrespective of what

5    caused him to lose consciousness, the agency was entitled to

6    deem the omission suspicious.      “A lacuna in an applicant’s

7    testimony or omission in a document submitted to corroborate

8    the applicant’s testimony, like a direct inconsistency between

9    one or more of those forms of evidence, can serve as a proper

10   basis for an adverse credibility determination.”   Xiu Xia Lin,

11   534 F.3d at 166 n.3.

12       The agency also cited a letter from Hossen’s neighbor,

13   which conflicted with Hossen’s account of the attack.     While

14   Hossen testified that the attack occurred at the headquarters

15   of the Bangladesh National Party (“BNP”), of which he was a

16   member, the neighbor recounted coming home from work the day

17   of the attack to find “hoodlums” of the Awami League beating

18   Hossen’s family at their home and asking that Hossen “be handed

19   over.”   CAR 335.   Hossen’s explanation for this inconsistency

20   was that he was “unconscious during that time,” and so perhaps

21   “they came to our home, but I don’t know anything about it.”
                                    5
1    Id. at 223-24.      The agency was not compelled to credit this

2    explanation, especially where the letters from Hossen’s parents

3    did not support it.       See Majidi, 430 F.3d at 79-80.

4          Hossen’s     credibility     was   further   undermined      by   his

5    documentation      from   the    BNP.      Specifically,     the   agency

6    reasonably questioned the letter from the president of the BNP

7    ward to which Hossen belonged.           During his testimony, Hossen

8    twice said that the letter was written in early 2008, after he

9    joined the BNP.      See CAR 182, 225.       But the letter refers to

10   a general election in December 2008 that brought the Awami

11   League to power in 2009 and bears an attestation date of August

12   2012.      It also refers to the “Awami Hoodlums” having beaten

13   Hossen, presumably in reference to the December 2008 attack.

14   Id.   at    328.    Hossen   had   no    explanation   for   these      date

15   discrepancies.      See id. at 228-29.

16         The IJ also reasonably deemed two aspects of Hossen’s

17   testimony implausible.       “[I]n assessing the credibility of an

18   asylum applicant’s testimony, an IJ is entitled to consider

19   whether the applicant’s story is inherently implausible.”

20   Wensheng Yan v. Mukasey, 509 F.3d 63, 66 (2d Cir. 2007).                Such

21   a finding cannot be based on “bald speculation or caprice.”
                                          6
1    Zhou Yun Zhang v. INS, 386 F.3d 66, 74 (2d Cir. 2004), overruled

2    on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494

3    F.3d 296, 305 (2d Cir. 2007)(en banc).     But one that is based

4    on “speculation that inheres in inference is not ‘bald’ if the

5    inference is made available to the factfinder by record facts,

6    or even a single fact, viewed in the light of common sense and

7    ordinary experience.”     Siewe v. Gonzales, 480 F.3d 160, 168-69

8    (2d Cir. 2007).

9        The first implausibility finding related to Hossen’s

10   ascent in the party.    At the age of 18 or 19, just months after

11   joining the party, Hossen became general secretary of a

12   700-member ward.    He clarified that title meant he was the

13   “leader of the branch.”    CAR 210.   When the IJ asked about his

14   speedy promotion, Hossen explained, “I was very efficient while

15   I worked.”     Id. at 213.      The IJ reasonably deemed this

16   implausible: common sense suggests that such a large political

17   organization would not select a teenaged newcomer as its leader.

18   See id. at 104.    The second implausibility finding related to

19   Hossen’s testimony that he was never given a BNP membership

20   card.   In evaluating this testimony, the IJ relied on a document

21   from the Immigration Refugee Board of Canada describing the
                                      7
1    BNP’s efforts since 2008 to issue standard membership documents

2    to its members.        On this basis, the IJ acted within his

3    discretion in deeming it implausible that Hossen would not have

4    a membership card.      See Siewe, 480 F.3d at 168-69.

5        Hossen’s argument that the agency overlooked a newspaper

6    report describing the attack is belied by the record.              In fact,

7    the IJ explicitly described the newspaper clipping in his

8    decision, noting that Hossen was asked why the clipping did not

9    reflect the article’s author.            CAR 100.

10       These inconsistencies and implausibility findings relate

11   directly   to   the    basis   for   Hossen’s       claims   and   provide

12   substantial evidence for the agency’s adverse credibility

13   determination.        Because Hossen’s applications for asylum,

14   withholding of removal, and CAT relief were all based on the

15   same factual predicate, this determination is dispositive of

16   the entire petition.     See Paul v. Gonzales, 444 F.3d 148, 156-57

17   (2d Cir. 2006).

18       For the foregoing reasons, the petition for review is

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

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

21   and any pending motion for a stay of removal in this petition
                                          8
1   is DISMISSED as moot.   Any pending request for oral argument

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

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

4   34.1(b).

5                               FOR THE COURT:
6                               Catherine O=Hagan Wolfe, Clerk
7




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