Rahman v. Lynch ( 2015 )

13-4583
Rahman v. Lynch
BIA
Abrams, IJ
A200 026 259
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.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
15th day of December, two thousand fifteen.
PRESENT:
PETER W. HALL,
DEBRA ANN LIVINGSTON,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
SUZON RAHMAN,
Petitioner,
v.
13-4583
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Salim Sheikh, New York, New York.
FOR RESPONDENT: Joyce R. Branda, Acting Assistant
Attorney General; Terri J. Scadron,
Assistant Director; Richard
Zanfardino, Trial Attorney, United
States Department of Justice, Civil
Division, Office of Immigration
Litigation, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DENIED.
Petitioner Suzon Rahman, a native and citizen of
Bangladesh, seeks review of a November 4, 2013, decision of the
BIA affirming the November 18, 2011, decision of an Immigration
Judge (“IJ”) denying Rahman’s application for asylum,
withholding of removal, and relief under the Convention Against
Torture (“CAT”). In re Suzon Rahman, No. A200 026 259 (B.I.A.
Nov. 4, 2013), aff’g No. A200 026 259 (Immig. Ct. N.Y. City Nov.
18, 2011). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
Under the circumstances of this case, we have reviewed the
IJ’s decision as modified by the BIA. Xue Hong Yang v. U.S.
Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The
applicable standards of review are well established. See 8
U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
165-66 (2d Cir. 2008) (per curiam).
For asylum applications, like Rahman’s, governed by the
REAL ID Act, the agency may, “[c]onsidering the totality of the
circumstances,” base a credibility finding on an asylum
applicant’s “demeanor, candor, or responsiveness,” the
plausibility of his account, and inconsistencies in his
statements, “without regard to whether” they go “to the heart
of the applicant’s claim,” so long as they reasonably support
an inference that the applicant is not credible. 8 U.S.C.
§ 1158(b)(1)(B)(iii); see Xiu Xia Lin, 534 F.3d at 167. “We
defer therefore to an IJ’s credibility determination unless,
from the totality of the circumstances, it is plain that no
reasonable fact-finder could make such an adverse credibility
ruling.” Xiu Xia Lin, 534 F.3d at 167. Substantial evidence
supports the IJ’s finding that Rahman was not credible.
Here, the IJ found that Rahman testified as though he
memorized the personal statement he filed with his application,
but gave problematic testimony when answering questions that
deviated from the contents of that statement. The record
supports the IJ’s observations. A fact-finder who assesses
testimony together with witness demeanor is in the best position
to discern “whether a witness who hesitated in a response was
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nevertheless attempting truthfully to recount what he recalled
of key events or struggling to remember the lines of a carefully
crafted ‘script.’” Li Hua Lin v. U.S. Dep’t of Justice, 453
F.3d 99, 109 (2d Cir. 2006). Accordingly, we defer to the
agency’s demeanor finding.
This demeanor finding is bolstered by a number of
inconsistencies, which substantiate the IJ’s finding that
Rahman had difficulty testifying about matters outside his
personal statement. Id. (“We can be still more confident in
our review of observations about an applicant’s demeanor where,
as here, they are supported by specific examples of inconsistent
testimony.”). The IJ properly relied on several
inconsistencies between Rahman’s testimony and that of his
U.S.-citizen uncle, Mohammad Minule Islam. Rahman testified
that Islam was his maternal uncle, but Islam testified that he
was Rahman’s paternal uncle. To explain this, Rahman argues
before this Court that the IJ confused the Bengali word “mama,”
meaning maternal uncle, with “kaka,” meaning paternal uncle,
but the translator specified that Rahman began saying “kaka”
only after he was confronted about the discrepancy. In
addition, Rahman testified that Islam’s father’s name was
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Mohammad Galil, but Islam testified that his father’s name was
Shariful Islam. The IJ was not required to credit Rahman’s
explanation, that “Galil” was a nickname, because Islam had
never heard of that name. Majidi v. Gonzales, 430 F.3d 77,
80-81 (2d Cir. 2005) (explaining that agency need not credit
explanations for inconsistent testimony unless those
explanations would compel a reasonable fact-finder to do so).
Additionally, Islam testified that he returned to Bangladesh
in early 2004 when his father died. But Rahman testified that
Islam’s father passed away “a long time back” when he was “very
young.” In 2004, Rahman would have been 19 or 20 years old.
The agency was not required to accept Rahman’s explanation that
he misunderstood. Majidi, 430 F.3d at 80-81.
The IJ’s adverse credibility determination is further
supported by inconsistencies between Rahman’s statements and
a doctor’s report he submitted to substantiate injuries he
allegedly sustained during a kidnapping. Rahman’s personal
statement reflected that his left hand was smashed and “blood
gushed” from it, but the doctor’s report did not mention any
hand injury. Moreover, the IJ observed Rahman pointing to a
scar in the middle of his forehead, but the doctor’s report
5
indicates that Rahman suffered injuries on both sides of his
forehead. As we have recognized, the IJ is in the best position
to observe the witness and evaluate credibility. See Jin Chen
v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d Cir. 2005). The
record also supports the IJ’s finding of a minor inconsistency
regarding Rahman’s passport; Rahman testified first that the
smuggler confiscated the passport, but later testified that he
lost it.
The IJ also reasonably relied on Rahman’s failure to
provide corroborating evidence. See Biao Yang v. Gonzales, 496
F.3d 268, 273 (2d Cir. 2007) (per curiam) (finding that
applicant’s failure to corroborate testimony may bear on
credibility). Contrary to Rahman’s argument, the IJ did not
ignore any evidence; rather, the IJ gave it diminished weight.
The IJ’s decision to give diminished weight to a letter from
Rahman’s father and statements from Jatiya Party members was
reasonable because neither direct testimony nor sworn
statements were before the IJ, and in general, the weight to
afford evidence is within the agency’s discretion. See Xiao
Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.
2006); In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (BIA 2010),
6
rev’d on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130(2d Cir. 2012). The IJ also reasonably gave diminished weight
to a psychologist’s report because it largely reiterated
Rahman’s account of past persecution. See Xiao Ji Chen, 471
F.3d at 342.
Given the agency’s findings regarding demeanor,
inconsistencies, and lack of corroboration, the “totality of
circumstances” supports the agency’s adverse credibility
determination. Xiu Xia Lin, 534 F.3d at 167. Rahman’s
argument, that the IJ erred by relying on inconsistencies
immaterial to his claim, is misguided because the REAL ID Act
allows the agency to base a credibility finding on any
inconsistency, without regard to whether it goes “to the heart
of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). As
all of Rahman’s claims share the same factual predicate, the
adverse credibility determination is dispositive of asylum,
withholding of removal, and CAT relief. Paul v. Gonzales, 444
F.3d 148, 156-57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
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and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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