Faruk v. Lynch ( 2016 )

14-4277
Faruk v. Lynch
BIA
Christensen, IJ
A087 998 865
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 13th day of September, two thousand sixteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 REENA RAGGI,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _____________________________________
12
13 OMAR FARUK,
14 Petitioner,
15
16 v. 14-4277
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Salim Sheikh, New York, New York.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Ernesto
27 H. Molina, Jr., Deputy Director;
28 Gladys M. Steffens Guzman, Trial
29 Attorney; Thelma A. Lizama, Law
30 Clerk, Office of Immigration
31 Litigation, United States
32 Department of Justice, Washington,
33 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 Omar Faruk, a native and citizen of Bangladesh,
6 seeks review of an October 17, 2014, decision of the BIA
7 affirming an October 24, 2012, decision of an Immigration Judge
8 (“IJ”) denying Faruk’s application for asylum, withholding of
9 removal, and relief under the Convention Against Torture
10 (“CAT”). In re Omar Faruk, No. A087 998 865 (B.I.A. Oct. 17,
11 2014), aff’g No. A087 998 865 (Immig. Ct. N.Y. City Oct. 24,
12 2012). We assume the parties’ familiarity with the underlying
13 facts and procedural history in this case.
14 Under 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
22 credibility determination on an asylum applicant’s “demeanor,
23 candor, or responsiveness,” the plausibility of his account,
2
1 and inconsistencies in his statements, “without regard to
2 whether” those inconsistencies go “to the heart of the
3 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin
4 v. Mukasey, 534 F.3d 162, 165 (2d Cir. 2008). Under the
5 “substantial evidence” standard of review, “we defer . . . to
6 an IJ’s credibility determination unless, from the totality of
7 the circumstances, it is plain that no reasonable fact-finder
8 could make such an adverse credibility ruling.” Xiu Xia Lin,
9 534 F.3d at 167.
10 The adverse credibility determination here rests on
11 substantial evidence. The agency justifiably relied on the
12 record of Faruk’s credible fear interview. We have advised
13 that “adverse credibility determinations based on
14 ‘discrepancies’ with a credible fear interview should be
15 examined with care to ensure that they are not arbitrary.” Ming
16 Zhang v. Holder, 585 F.3d 715, 725 (2d Cir. 2009) (identifying
17 a hallmark of reliability as whether the applicant was asked
18 questions “designed to elicit a potential basis for an asylum
19 claim” (internal quotation marks omitted)). We have also
20 explained that while the agency “should not overlook complaints
21 of coercion altogether, an alien’s mere recitation that he was
22 nervous or felt pressured during an airport interview will not
23 automatically prevent the IJ or BIA from relying on statements
3
1 in such interviews when making adverse credibility
2 determinations.” Yun-Zui Guan v. Gonzales, 432 F.3d 391, 398
3 n.6 (2d Cir. 2005) (internal citation omitted)
4 Here, Faruk did not object to the admission of the credible
5 fear interview record into evidence. The record bore the
6 hallmarks of reliability: the interview was conducted through
7 a Bengali interpreter, focused on why Faruk feared returning
8 to Bangladesh, and was memorialized in a typewritten document.
9 Faruk testified that he was confused and in an improper mental
10 state during the interview, but did not claim that he
11 misunderstood any of the questions or the interpreter.
12 The IJ’s determination that the record eroded Faruk’s
13 credibility was sound: each of the inconsistencies identified
14 by the IJ is supported by the record. The IJ also reasonably
15 relied on the inconsistency between the affidavit of Faruk’s
16 wife, who said nothing about the attack, and Faruk’s testimony
17 that she was present and living at the house when it was
18 attacked. When pressed on these inconsistencies, Faruk
19 professed his confusion at the credible fear interview. The
20 agency was not compelled to credit this explanation. Majidi
21 v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (stating that the
22 agency is not required to credit an explanation that is merely
23 plausible or possible); Yun-Zui Guan, 432 F.3d at 398 n.6.
4
1 The IJ also reasonably relied on Faruk’s failure to mention
2 three attacks during his credible fear interview. “An
3 inconsistency and an omission are,” for the purposes of a
4 credibility determination, “functionally equivalent.” Xiu
5 Xia Lin, 534 F.3d at 166 n.3. Here, the omissions were
6 significant. At the hearing, Faruk described three additional
7 attacks, one in which he was kidnapped, held overnight, beaten,
8 and released only after his family paid ransom, and another in
9 which a fellow BNP member was beaten to death. The IJ was
10 entitled to “rely on the commonsense observation that it is
11 inconsistent for a petitioner to respond to the same question
12 about the nature of his asylum claim with two entirely different
13 responses.” Yun-Zui Guan, 432 F.3d at 398.
14 Faruk challenges the denial of CAT relief. Given the
15 omissions and inconsistencies that cast doubt on whether the
16 alleged persecution occurred, the totality of the circumstances
17 supports the agency’s adverse credibility determination.
18 Faruk’s applications for asylum, withholding of removal, and
19 CAT relief were based on the same factual predicate, and so the
20 adverse credibility determination was dispositive as to all
21 three. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.
22 2006).
23 Faruk’s additional arguments fail. One is that the IJ
5
1 should have inferred that he did not trust the asylum officer
2 and may have thought it unnecessary to discuss all of the
3 incidents. “An attorney’s unsworn statements in a brief are
4 not evidence.” Kulhawik v. Holder, 571 F.3d 296, 298 (2d Cir.
5 2009). Moreover, had Faruk so testified, the IJ was not
6 obligated to credit that explanation, which did not account for
7 the vast differences between the credible fear interview and
8 the asylum application. Majidi, 430 F.3d at 80.
9 Faruk posits that the IJ ignored his documentary evidence.
10 Not so. The IJ found that Faruk’s documents did not
11 rehabilitate his credibility because the affidavits from people
12 in Bangladesh were submitted without identification, came from
13 people unavailable for cross-examination, and actually
14 conflicted with Faruk’s problematic testimony. The documents
15 suffered other inadequacies: a medical record was not
16 contemporaneous with Faruk’s treatment, a letter from a BNP
17 official relied on hearsay, and a report from a U.S. doctor was
18 based on secondhand information supplied by Faruk. We “defer
19 to the agency’s determination of the weight afforded to an
20 alien’s documentary evidence.” Y.C. v. Holder, 741 F.3d 324,
21 334 (2d Cir. 2013).
22 Faruk also appears to seek a discretionary grant of asylum
23 notwithstanding the adverse credibility determination.
6
1 Presumably he refers to the fact that once an alien establishes
2 that he “is a ‘refugee’ within the meaning of the [INA],” and
3 therefore eligible for asylum, “the decision whether to grant
4 a particular application is still within the discretion of the
5 Attorney General.” Abankwah v. INS, 185 F.3d 18, 22 (2d Cir.
6 1999). This principle is inapplicable to Faruk: because of the
7 adverse credibility determination, he was ineligible for
8 asylum. See Wu Zheng Huang v. INS, 436 F.3d 89, 95-97 (2d Cir.
9 2006).
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, any stay of removal
12 that the Court previously granted in this petition is VACATED,
13 and any pending motion for a stay of removal in this petition
14 is DISMISSED as moot. Any pending request for oral argument
15 in this petition is DENIED in accordance with Federal Rule of
16 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
17 34.1(b).
18 FOR THE COURT:
19 Catherine O=Hagan Wolfe, Clerk
7