Khakon v. Holder ( 2014 )

13-4470
Khakon v. Holder
BIA
Wright, IJ
A087 995 425
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 30th day of October, two thousand fourteen.
5
6 PRESENT:
7 ROBERT D. SACK,
8 BARRINGTON D. PARKER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _____________________________________
12
13 MOHAMMED KHAKON,
14 Petitioner,
15
16 v. 13-4470
17 NAC
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Thomas V. Massucci, New York, New
25 York.
26
27 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
28 General; Jennifer L. Lightbody,
29 Senior Litigation Counsel; Edward E.
1 Wiggers, Trial Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Mohammed Khakon, a native and citizen of
11 Bangladesh, seeks review of a November 8, 2013, decision of
12 the BIA, affirming the November 15, 2011, decision of an
13 Immigration Judge (“IJ”), denying his application for
14 asylum, withholding of removal, and relief under the
15 Convention Against Torture (“CAT”). In re Mohammed Khakon,
16 No. A087 995 425 (B.I.A. Nov. 8, 2013), aff’g No. A087 995
17 425 (Immig. Ct. N.Y. City Nov. 15, 2011). We assume the
18 parties’ familiarity with the underlying facts and
19 procedural history in this case.
20 Under the circumstances of this case, we have reviewed
21 both the BIA’s and IJ’s opinions. See Zaman v. Mukasey, 514
22 F.3d 233, 237 (2d Cir. 2008)(per curiam). The applicable
23 standards of review are well established. See 8 U.S.C.
24 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-
25 66 (2d Cir. 2008)(per curiam). For asylum applications
2
1 governed by the REAL ID Act, the agency may, “[c]onsidering
2 the totality of the circumstances,” base a credibility
3 finding on inconsistencies in the asylum applicant’s
4 statements and other record evidence “without regard to
5 whether” they go “to the heart of the applicant’s claim.”
6 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-
7 64. Here, substantial evidence supports the agency’s
8 determination that Khakon was not credible.
9 The IJ properly relied on the multiple inconsistences
10 between Khakon’s statements and documentary evidence. See
11 Xiu Xia Lin, 534 F.3d at 167. Khakon’s asylum application
12 and hearing testimony differed as to the location of an
13 injury he suffered during an alleged attack on a Bangladesh
14 National Party meeting. Letters from family and friends
15 also provided differing locations for the injury. This
16 inconsistency goes to the heart of Khakon’s claim of
17 political persecution because it relates to his main
18 allegation of harm. See Xiu Xia Lin, 534 F.3d at 163-64;
19 Xian Tuan Ye v. Dep't of Homeland Sec., 446 F.3d 289, 295
20 (2d Cir. 2006)(per curiam).
21 The agency’s determination is further supported by
22 additional inconsistences and Khakon’s lack of familiarity
3
1 with his own documentary evidence. Khakon did not know when
2 his father died, but he submitted an affidavit just a few
3 weeks before his merits hearing providing an exact date for
4 his father’s death. He also could not remember how he
5 obtained the documents he submitted in support of his claim,
6 and he could not explain how his birth certificate could
7 have been issued in 2011 when the face of the certificate
8 itself reflected a 2008 issuance date. Combined, the
9 inconsistencies regarding the injury and these additional
10 problems with the documentary evidence are adequate support
11 for the agency’s credibility determination. See Xiu Xia
12 Lin, 534 F.3d at 163-64.
13 Moreover, Khakon’s argument that the IJ should have
14 given greater weight to the report of his psychiatrist, Dr.
15 Reich, and credited Dr. Reich’s notation of a scar on
16 Khakon’s leg is without merit. The report merely states
17 that Khakon has a scar on his leg. It does not resolve the
18 inconsistency between his testimony and application
19 concerning the particular location of his injuries.
20 Khakon also argues that the agency should have
21 considered the letter submitted by his doctor in Bangladesh.
22 While this letter does corroborate Khakon’s testimony that
4
1 the injury was to his left ankle, it was submitted late with
2 a postmark from the United Arab Emirates, not Bangladesh,
3 and prepared in 2011, two years after the injury.
4 Furthermore, it does not resolve the inconsistency in
5 Khakon’s application. Moreover, an IJ is under no obligation
6 to “expressly parse or refute” every piece of evidence in
7 the record. See Wei Guang Wang v. B.I.A., 437 F.3d 270, 275
8 (2d Cir. 2006) (quoting Xiao Ji Chen v. U.S. Dep't of
9 Justice, 434 F.3d 144, 160 n.13 (2d Cir. 2006)).
10 Khakon now raises an additional argument. He contends
11 that Dr. Reich’s diagnoses of Post-Traumatic Stress Disorder
12 and Major Depressive Disorder account for his difficulty
13 remembering where he was injured and when his father died.
14 Even assuming this argument is exhausted, it is without
15 merit. The IJ did rely on the report, noting that Dr. Reich
16 found Khakon to have no cognitive disabilities. In any
17 event, the diagnoses do not explain why Khakon filed a sworn
18 affidavit providing an exact date for his father’s death if
19 he could not remember when his father died.
20 Considering the totality of circumstances, including
21 the inconsistencies and Khakon’s inability to identify the
22 source of many of his supporting documents, substantial
5
1 evidence supports the agency’s adverse credibility
2 determination. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin,
3 534 F.3d at 165-66. Accordingly, the agency did not err in
4 denying Khakon asylum, withholding of removal, and CAT
5 relief because those claims were based on the same factual
6 predicate. Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.
7 2006).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of
10 removal that the Court previously granted in this petition
11 is VACATED, and any pending motion for a stay of removal in
12 this petition is DISMISSED as moot. Any pending request for
13 oral argument in this petition is DENIED in accordance with
14 Federal Rule of Appellate Procedure 34(a)(2), and Second
15 Circuit Local Rule 34.1(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
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