     08-4595-ag
     Ahmed v. Holder
                                                                                         BIA
                                                                                 Elstein, IJ
                                                                                A073 533 203
                          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 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 Daniel Patrick                     Moynihan
 3       United States Courthouse, 500 Pearl Street, in the                     City of
 4       New York, on the 17 th day of February, two thousand                   ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                JON O. NEWMAN,
 9                RALPH K. WINTER,
10                         Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       SHAMEEM AHMED,
14                Petitioner,
15
16                     -v.-                                        08-4595-ag
17                                                                 NAC
18       ERIC H. HOLDER, JR., United States
19       Attorney General, *
20                Respondent.
21       - - - - - - - - - - - - - - - - - - - -X


                *
               Pursuant to Federal Rule of Appellate Procedure
         43(c)(2), Attorney General Eric H. Holder Jr. is
         automatically substituted for former Attorney General
         Michael B. Mukasey as respondent in this case.

                                                  1
 1   FOR PETITIONER:   Durga Prasad Bhurtel, Chhetry &
 2                     Associates, P.C., New York, NY.
 3
 4   FOR RESPONDENT:   Brianne Whelan Cohen, Trial Attorney
 5                     (Michael F. Hertz, Acting Assistant
 6                     Attorney General, Civil Division, William
 7                     C. Peachey, Assistant Director), Office
 8                     of Immigration Litigation, United States
 9                     Department of Justice, Office of
10                     Immigration Litigation, Washington, D.C.
11
12        UPON DUE CONSIDERATION of this petition for review of a
13   decision of the Board of Immigration Appeals (“BIA”), it is
14   hereby ORDERED, ADJUDGED, AND DECREED that the petition for
15   review is GRANTED.
16
17        Petitioner Shameem Ahmed, a native and citizen of
18   Bangladesh, seeks review of an August 19, 2008 order of the
19   BIA affirming the October 10, 2006 decision of Immigration
20   Judge (“IJ”) Annette S. Elstein, denying his application for
21   asylum, withholding of removal, and relief under the
22   Convention Against Torture (“CAT”). In re Shameem Ahmed,
23   No. A073 533 203 (B.I.A. Aug. 19, 2008), aff’g No. A073 533
24   203 (Immig. Ct. N.Y. City Oct. 10, 2006). We assume the
25   parties’ familiarity with the underlying facts and
26   procedural history in this case.
27
28        When the BIA summarily affirms the decision of the IJ
29   without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4),
30   this Court reviews the IJ’s decision as the final agency
31   determination, see Shunfu Li v. Mukasey, 529 F.3d 141, 146
32   (2d Cir. 2008). We review the agency’s factual findings
33   under the substantial evidence standard. See 8 U.S.C. §
34   1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.
35   2008). Questions of law and the application of law to
36   undisputed fact are reviewed de novo. See Salimatou Bah v.
37   Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
38
39        The IJ’s adverse credibility finding was based
40   primarily on a letter summarizing the findings of a consular
41   investigation team (“consular report”). The consular report
42   concluded that a medical document submitted by Ahmed in
43   support of his application was not genuine. According to
44   the consular report, the medical document did not conform to
45   the format of the hospital’s admissions certificate.
46   Although the hospital had a patient record for Ahmed, that
47   record indicated Ahmed was admitted two days earlier than he

                                  2
 1   had alleged and that he had been treated for “three
 2   perforations” rather than injuries related to an alleged
 3   beating.
 4
 5        Generally, an IJ may draw a negative inference
 6   regarding the authenticity of the remainder of an
 7   applicant’s uncorroborated evidence when it is established
 8   that the applicant submitted a fraudulent document. See
 9   Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007). In
10   this case, however, the consular report is insufficiently
11   reliable to support an adverse credibility determination
12   under the substantial evidence standard. Zhen Nan Lin v.
13   U.S. Dep’t of Justice, 459 F.3d 255, 270-72 (2d Cir. 2006).
14   The following “non-exhaustive” factors “provide an
15   analytical framework for assessing the reliability of an
16   investigative report:” “(i) the identity and qualifications
17   of the investigator(s); (ii) the objective and extent of the
18   investigation; and (iii) the methods used to verify the
19   information discovered.” Id. at 271 (relying on Memorandum
20   from Bo Cooper, INS General Counsel, to Jeffrey Weiss, INS
21   Director of Int’l Affairs, Confidentiality of Asylum
22   Applications and Overseas Verification of Documents and
23   Application Information 6-7, (June 21, 2001)).
24
25        The consular report sufficiently describes the
26   objective and extent of the consular investigation, thereby
27   satisfying the second factor. But the consular report
28   presents no information regarding the identity or
29   qualifications of the “consular investigation team.” See
30   Zhen Nan Lin, 459 F.3d at 271 (finding insufficiency where a
31   consular report included “the names and titles of the
32   investigators,” but lacked any “information regarding their
33   competency or qualifications”). It is merely a letter from
34   Nadia Tongour, Director of the Office of Country Reports and
35   Asylum Affairs, summarizing the findings of unidentified
36   persons at the consulate. The consular report states that
37   the investigation team “spoke with a senior hospital
38   official” and “examine[d] admissions records.” The consular
39   report neither includes the name, title, or qualifications
40   of this senior hospital official nor does it reveal the
41   nature of the hospital’s record-keeping. This description
42   is insufficiently detailed to explain “the methods used to
43   verify the information discovered.” Id.
44
45        The IJ’s adverse credibility determination is dependent
46   on the consular report. The IJ did observe that “[t]he mere
47   fact of the conflict of dates [regarding Ahmed’s hospital

                                  3
 1   admission and service as the Jatiyo Party publicity head],
 2   regardless of whether the [medical document] was false or
 3   not, is sufficient to put [Ahmed’s] credibility at risk.”
 4   But this observation falls short of an adverse credibility
 5   determination independent of the consular report. The
 6   discrepancy in the date of Ahmed’s hospital admission arises
 7   out of the consular report. The discrepancy in the date of
 8   Ahmed’s service as the Jatiyo Party publicity head is too
 9   minor, even when aggregated with other discrepancies, to
10   support an adverse credibility determination. See Diallo v.
11   INS, 232 F.3d 279, 288 (2d Cir. 2000) (“Where an applicant’s
12   testimony is generally consistent, rational, and believable,
13   disparities . . . need not be fatal, especially if the
14   errors are relatively minor and isolated.”). The IJ’s
15   adverse credibility determination thus cannot survive review
16   absent reliance on the consular report, and remand is
17   therefore appropriate. See Li Hua Lin v. U.S. Dep’t of
18   Justice, 453 F.3d 99, 111 (2d Cir. 2006) (“The more central
19   errant finding was to the IJ’s adverse credibility
20   determination, naturally, the less confident we can be that
21   remand would be futile.”).
22
23        No other ground permits denial of the petition. An
24   applicant who establishes past persecution on account of a
25   protected ground is entitled to a presumption that he has a
26   well-founded fear of future persecution on the same basis;
27   the government bears the burden of rebutting this
28   presumption by showing that changed circumstances render the
29   applicant’s fear unfounded. See Baba v. Holder, 569 F.3d
30   79, 86 (2d Cir. 2009) (“The law is clear that a showing of
31   past persecution shifts the burden to the government on the
32   question of the petitioner’s well-founded fear of future
33   persecution.”). The IJ observed that even if Ahmed’s
34   testimony had been credible, Ahmed was not entitled to
35   relief because of changed circumstances in Bangladesh. The
36   IJ may have implicitly assumed that Ahmed established past
37   persecution for purposes of her changed circumstances
38   analysis, but she certainly did not make that assumption
39   explicit. The resulting ambiguity precludes this Court from
40   evaluating whether the IJ gave Ahmed the benefit of the
41   presumption of a well-founded fear of future persecution.
42   Remand is therefore appropriate. See Beskovic v. Gonzales,
43   467 F.3d 223, 227 (2d Cir. 2006) (“Whether or not Beskovic
44   is entitled to a presumption of future persecution requires
45   a determination . . . of whether he suffered past
46   persecution. Because we cannot determine whether the IJ


                                  4
 1   correctly assessed Beskovic’s claim of past persecution, we
 2   are stymied.”).
 3
 4        For the foregoing reasons, the petition for review is
 5   GRANTED and the case is REMANDED to the agency for further
 6   proceedings consistent with this order. On remand, the
 7   agency may do one or more of the following: (i) allow the
 8   record to be reopened for further fact-finding related to
 9   the consular report; (ii) evaluate the record and any
10   additional facts added to the record for discrepancies not
11   relied on by the IJ, but sufficient to give rise to an
12   adverse credibility determination independent of the
13   consular report; and (iii) to assume past persecution,
14   accord Ahmed the benefit of the presumption of a well-
15   founded fear of future persecution, and determine whether
16   the government has sustained its burden of demonstrating
17   changed circumstances. As we have completed our review, any
18   stay of removal that the Court previously granted in this
19   petition is VACATED, and any pending motion for a stay of
20   removal in this petition is DISMISSED as moot. Any pending
21   request for oral argument in this petition is DENIED in
22   accordance with Federal Rule of Appellate Procedure 34(a)(2)
23   and Second Circuit Local Rule 34.1(b).
24
25
26                              FOR THE COURT:
27                              CATHERINE O’HAGAN WOLFE, CLERK
28
29
30




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