Abid v. Barr

A
     18-520
     Abid v. Barr
                                                                           BIA
                                                                 Christensen, IJ
                                                                 A206 228 816
                         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 28th day of December, two thousand twenty.
 5
 6   PRESENT:
 7            DEBRA ANN LIVINGSTON,
 8                 Chief Judge,
 9            PIERRE N. LEVAL,
10            STEVEN J. MENASHI,
11                 Circuit Judges.
12   _____________________________________
13
14   MUHAMMAD NOMAN ABID,
15            Petitioner,
16
17                  v.                                  18-520
18                                                      NAC
19   WILLIAM P. BARR,
20   UNITED STATES ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                Anas J. Ahmed, Esq., New York, NY.
25
26   FOR RESPONDENT:                Joseph H. Hunt, Assistant Attorney
27                                  General; Carl McIntyre, Assistant
28                                  Director; Virginia Lum, Trial
 1                                          Attorney, Office of Immigration
 2                                          Litigation, United States
 3                                          Department of Justice, Washington,
 4                                          DC.

 5         UPON DUE CONSIDERATION of this petition for review of a

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

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

8    is DENIED.

9          Petitioner Muhammad Noman Abid, a native and citizen of

10   Pakistan, seeks review of a January 24, 2018, decision of the

11   BIA affirming a November 9, 2016, decision of an Immigration

12   Judge        (“IJ”)      denying      Abid’s        application        for   asylum,

13   withholding         of   removal,      and       relief    under   the    Convention

14   Against Torture (“CAT”).               In re Muhammad Noman Abid, No. A

15   206 228 816 (B.I.A. Jan. 24, 2018), aff’g No. A 206 228 816

16   (Immig. Ct. N.Y. City Nov. 9, 2016).                      We assume the parties’

17   familiarity with the underlying facts and procedural history.

18         We have reviewed both the IJ’s and the BIA’s decisions

19   “for the sake of completeness.”                           Wangchuck v. Dep’t of

20   Homeland       Sec.,     

448 F.3d 524

,       528     (2d   Cir.   2006).     The

21   applicable standards of review are well established.                            See 8

22   U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 

891 F.3d 23

  67,     76    (2d     Cir.     2018)    (reviewing          adverse      credibility

24   determination for substantial evidence).
                                                  2
 1       “Considering the totality of the circumstances, and all

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

 3   determination on the demeanor, candor, or responsiveness of

 4   the applicant . . . , the consistency between the applicant’s

 5   . . . written and oral statements . . . , the internal

 6   consistency of each such statement, [and] the consistency of

 7   such statements with other evidence of record . . . without

 8   regard to whether an inconsistency, inaccuracy, or falsehood

 9   goes to the heart of the applicant’s claim, or any other

10   relevant factor.”    8 U.S.C. § 1158(b)(1)(B)(iii).      “We defer

11   . . . to an IJ’s credibility determination unless, from the

12   totality of the circumstances, it is plain that no reasonable

13   fact-finder could make such an adverse credibility ruling.”

14   Xiu Xia Lin v. Mukasey, 

534 F.3d 162

, 167 (2d Cir. 2008);

15   accord Hong Fei 

Gao, 891 F.3d at 76

.

16       “[A]dverse      credibility        determinations   based    on

17   ‘discrepancies’ with a credible fear interview should be

18   examined with care.”    Ming Zhang v. Holder, 

585 F.3d 715

, 725

19   (2d Cir. 2009) (citing Ramsameachire v. Ashcroft, 

357 F.3d 20

  169, 180-81 (2d Cir. 2004)).          But “[w]here the record of a

21   credible   fear     interview     displays     the   hallmarks   of

22   reliability, it appropriately can be considered in assessing

                                       3
 1   an alien’s credibility.”

Id. “Hallmarks of reliability”

 2   include      whether    the   interview      is     a    typewritten    list    of

 3   questions      and    answers,    whether     it    demonstrates        that    the

 4   applicant understood the questions and reflects questions

 5   about past harm or fear of future harm, and whether it was

 6   conducted with an interpreter.

Id. 7

         The   agency     properly    relied     on       Abid’s    credible     fear

 8   interview because the interview record was reliable.                            See

 9   8 U.S.C.       § 1158(b)(1)(B)(iii).                    The      “hallmarks      of

10   reliability” listed in Ming Zhang are present here: the

11   interview was conducted with an interpreter in a language

12   Abid    said   he     understood;    Abid     had       retained    counsel    but

13   declined to have his attorney present; it is memorialized in

14   a   question-and-answer          format;     the        questions    posed     were

15   designed to elicit details of an asylum claim; and Abid’s

16   responses indicated that he understood the questions.                          

585 17 F.3d at 725

.         Further, Abid’s counsel did not object when the

18   IJ admitted the interview record into evidence.

19          Because the record of the credible fear interview was

20   reliable,      substantial         evidence       supports        the   agency’s

21   determination that Abid was not credible as to his claim of

22   political persecution.           See Xiu Xia 

Lin, 534 F.3d at 165-66

.

                                            4
 1         Abid was inconsistent with his credible fear interview

 2   about when a rival political party member threatened him, and

 3   he omitted the murders of his seven cousins during that

 4   interview.      Abid was not confronted with the inconsistency,

 5   but because it was obvious, was               about when Sadiq first

 6   threatened him, and related to the date of the elections

 7   during which Abid claimed to have been active, the agency was

 8   permitted to rely upon it as part of the totality of the

 9   circumstances.     See Majidi v. Gonzales, 

430 F.3d 77

, 81 (2d

10   Cir. 2005) (“Nor have we ever required that an IJ, when faced

11   with inconsistent testimony of an asylum applicant, must

12   always bring any apparent inconsistencies to the applicant’s

13   attention and actively solicit an explanation.”); Ming Shi

14   Xue v. BIA, 

439 F.3d 111

, 114 (2d Cir. 2006) (IJ need not

15   solicit    explanations        for       “inconsistencies     that     are

16   ‘dramatic’—that is, sufficiently conspicuous and central to

17   the applicant’s claim as to be self-evident”).

18         As for the omission, Abid first testified that he told

19   the asylum officer that his cousins had been murdered, but

20   then claimed that he had wanted to tell the officer but did

21   not   because    she   had   instructed     him   only   to   answer   the

22   questions she asked.         He explained that he was nervous and

                                          5
 1   was not as comfortable with the Urdu interpreter because he

 2   speaks Punjabi better than Urdu.           These explanations are not

 3   compelling because the credible fear record demonstrates that

 4   the asylum officer asked probing questions to elicit more

 5   details, including a final question asking Abid if he wanted

 6   to add anything else that had not been covered during the

 7   interview.       See 

Majidi, 430 F.3d at 80

(“A petitioner must

 8   do     more    than   offer    a   plausible    explanation      for    his

9    inconsistent statements to secure relief; he must demonstrate

10   that a reasonable fact-finder would be compelled to credit

11   his testimony.” (internal quotations omitted)).

12          Concerning     the     officer’s    directive   to      answer   the

13   questions       asked,   she    said   this    twice   after     Abid   was

14   unresponsive to questions; it was not a command to limit his

15   answers but rather a request to address what was being asked

16   of him.       While it is plausible that Abid was stressed during

17   his interview (which the IJ recognized), stress does not

18   explain why he was able to tell the officer that Nawaz Party

19   members harmed him twice and threatened him four to five times

20   but unable to include a major part of his claim: that they

21   also killed seven of his family members when trying to shoot

22   him.    Abid’s claim that he did not completely understand the

                                            6
 1   Urdu interpreter at his credible fear interview (and his

 2   border    interview     as     discussed         below)   because    he     speaks

 3   Punjabi better than Urdu does not explain his omissions and

 4   inconsistencies because he requested an Urdu interpreter for

 5   his interviews, and he indicated in his subsequent asylum

 6   application that Urdu was his native language.

 7          We recognize that the agency may err if it relies too

 8   heavily   on    minor    omissions,         at    least   where    the     omitted

 9   information       would        have     supplemented,             rather      than

10   contradicted, earlier statements, but the agency did not err

11   here    because   Abid’s       omission——the         murder   of     his     seven

12   cousins——concerned a major event that was central to his claim

13   of persecution.         See Ming 

Zhang, 585 F.3d at 726

(holding

14   that    the    agency    may    “draw       an    adverse   inference        about

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

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

17   Further, the agency did not rely solely on this omission but

18   rather noted it in combination with other inconsistencies.

19   See Hong Fei 

Gao, 891 F.3d at 78

, 82 (holding that “the

20   probative value of a witness’s prior silence on particular

21   facts depends on whether those facts are ones the witness

22   would reasonably have been expected to disclose” and that

                                             7
 1   “[o]missions need not go to the heart of a claim to be

 2   considered in adverse credibility determinations, but they

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

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

 5          The agency also reasonably found that Abid’s testimony

 6   and asylum application were inconsistent with his border

 7   interview as to the motive of his persecutors.                       See 8 U.S.C.

 8   § 1158(b)(1)(B)(iii).               Abid       testified    and   wrote   in   his

 9   application that members of the Nawaz Party, including a man

10   named Danish Sadiq, threatened and tried to kill him (and in

11   the process, killed seven of his cousins) because of his

12   political work with the rival Quaid Party.                    But he previously

13   told a border patrol agent that he feared returning to

14   Pakistan because his “family was threatened by a man who is

15   known to have killed eight people in [his] village to take

16   [his family’s] land.”               There is no copy of this border

17   interview       in    the    record,     but     Abid   did   not    contest   the

18   Department           of     Homeland       Security        (“DHS”)    attorney’s

19   characterization during cross-examination that he told the

20   border patrol officer that he had been targeted because of a

21   land dispute;             he explained that he did not mention his

22   persecutors’ political motives because “the lady who was

                                                8
 1   interviewing me, she was asking me and telling me to answer

 2   only    what    she    was     asking.”     This    explanation      was   not

 3   compelling because the question 1 that the border patrol agent

 4   asked was a broad one designed to solicit the basis for his

 5   fear, and Abid never mentioned land disputes he had with the

 6   Nawaz    Party    in     his     subsequent    asylum      application     and

 7   testimony until confronted.            See 

Majidi, 430 F.3d at 80

; see

 8   also Xian Tuan Ye v. Dep’t of Homeland Sec., 

446 F.3d 289

,

 9   295 (2d Cir. 2006) (holding that “material inconsistency in

10   an aspect of [an applicant’s] story that served as an example

11   of the very persecution from which he sought asylum . . .

12   afforded       substantial       evidence     to   support    the     adverse

13   credibility finding.” (internal quotation marks and citation

14   omitted)).

15          Finally,    the       agency   properly     found    that    Abid   was

16   inconsistent about whether he returned home after the June

17   15, 2013 shooting.           Abid’s explanation that he was hiding in

18   his large house did not resolve this inconsistency.                        See

19   

Majidi, 430 F.3d at 80

.



     1According to the DHS attorney during cross-examination, the
     border agent asked Abid, “If you are sent back to your
     country, do you fear that you will be persecuted or tortured?”
     Abid said he recalled the question from his border interview.
                                    9
 1       Having    questioned      Abid’s      credibility,      the     agency

 2   reasonably   relied     on   his    failure     to   rehabilitate      his

 3   testimony with reliable corroborating evidence.                   See Biao

 4   Yang v. Gonzales, 

496 F.3d 268

, 273 (2d Cir. 2007) (“An

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

 6   bear on credibility, because the absence of corroboration in

 7   general makes an applicant unable to rehabilitate testimony

 8   that has already been called into question.”).                     The IJ

 9   determined that Abid’s witness was not reliable, and he has

10   not challenged that determination.         Abid submitted affidavits

11   from relatives, his party membership card, warrants for his

12   arrest, numerous police reports and statements, information

13   about his father’s political activities and alleged political

14   persecution, and death reports of his family members.                  The

15   agency did not err in declining to afford significant weight

16   to these documents because the authors of the affidavits,

17   issuer of the party membership card, and persons who provided

18   statements   to   the   police     were   not   available   for     cross-

19   examination; his family members were interested parties; and

20   the police and government documents were not authenticated.

21   See Y.C. v. Holder, 

741 F.3d 324

, 332 (2d Cir. 2013) (“We

22   generally defer to the agency’s evaluation of the weight to

                                         10
 1   be afforded an applicant’s documentary evidence.”); see also

 2   In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 214 n.5, 215 (BIA

 3   2010) (finding that unsworn letters from friends and family

 4   were insufficient to provide substantial support for claims

 5   because they were from interested witnesses not subject to

 6   cross-examination and noting that the “failure to attempt to

 7   prove the authenticity of a document through [8 C.F.R. §

 8   1287.6] or any other means is significant”), overruled on

 9   other grounds by Hui Lin Huang v. Holder, 

677 F.3d 130

, 133–

10   38 (2d Cir. 2012).

11        Accordingly,      given   the    record   inconsistencies,    the

12   credible fear interview omission, and the lack of reliable

13   corroboration,   the     adverse     credibility   determination   is

14   supported by substantial evidence.         See Xiu Xia Lin, 

534 F.3d 15

  at   165–66.     The    adverse      credibility   determination   was

16   dispositive of asylum, withholding of removal, and CAT relief

17   because all three forms of relief were based on the same

18   discredited factual predicate.            See Paul v. Gonzales, 444

19 F.3d 148

, 156–57 (2d Cir. 2006).

20




                                          11
1       For the foregoing reasons, the petition for review is

2   DENIED.   All pending motions and applications are DENIED and

3   stays VACATED.

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




                                  12

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