Maksud v. Lynch ( 2016 )

15-2744
Maksud v. Lynch
BIA
Christensen, IJ
A059 851 987
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 20th day of September, two thousand sixteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 JOSÉ A. CABRANES,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 TAREQ MAKSUD,
14 Petitioner,
15
16 v. 15-2744
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Tareq Maksud, Pro Se, Woodside, NY.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Terri J.
27 Scadron, Assistant Director;
28 Richard Zanfardino, Trial Attorney,
29 Office of Immigration Litigation,
30 United States Department of Justice,
31 Washington, DC.
32
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 Tareq Maksud, a native and citizen of
6 Bangladesh, seeks review of a July 29, 2015 decision of the BIA
7 affirming a December 18, 2013 decision of an Immigration Judge
8 (“IJ”) denying Maksud’s application for asylum, withholding of
9 removal, and relief under the Convention Against Torture
10 (“CAT”). In re Tareq Maksud, No. A059 851 987 (B.I.A. July 29,
11 2015), aff’g No. A059 851 987 (Immig. Ct. N.Y. City Dec. 18,
12 2013). We assume the parties’ familiarity with the underlying
13 facts and procedural history in this case.
14 Under the circumstances of this case, we review both the
15 IJ’s and the BIA’s opinions. Yun-Zui Guan v. Gonzales, 432 F.3d
16 391, 394 (2d Cir. 2005). The applicable standards of review
17 are well established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia
18 Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). For asylum
19 applications that are governed by the REAL ID Act, like
20 Maksud’s, the agency may base an adverse credibility
21 determination on inconsistencies within and between the
22 applicant’s statements. 8 U.S.C. § 1158(b)(1)(B)(iii). The
23 agency “may rely on any inconsistency or omission in making an
2
1 adverse credibility determination as long as the ‘totality of
2 the circumstances’ establishes that an asylum applicant is not
3 credible.” Xiu Xia Lin, 534 F.3d at 167 (quoting 8 U.S.C.
4 § 1158(b)(1)(B)(iii)). Here, the totality of the
5 circumstances supports the agency’s adverse credibility
6 determination: the IJ identified multiple significant
7 inconsistencies and omissions in Maksud’s statements.
8 The IJ reasonably relied on inconsistencies between
9 Maksud’s asylum applications and airport interview. At the
10 airport interview, Maksud stated that he came to the United
11 States to obtain a business or student visa, and that he left
12 Bangladesh because “the economy [wa]s not good.” When asked
13 if he feared returning to Bangladesh, he said, “Yes,” and gave
14 as a reason that “people who get support from the political party
15 [are] after [him] for [his] money.” He explained that he would
16 be harmed because those people know that he is in the United
17 States, that he owns a construction company in Bangladesh, and
18 that he has money. In contrast, he alleges in his asylum
19 applications that he left because he was beaten, arrested, and
20 detained in response to his political activities. The IJ
21 reasonably rejected Maksud’s explanation for the
22 inconsistencies—that he was not asked about past harm in the
23 airport interview—because the record shows that the interviewer
3
1 asked Maksud why he left Bangladesh and whether he feared
2 returning. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.
3 2005) (holding that agency need not credit applicant’s
4 explanation for inconsistencies unless proffered explanation
5 would compel reasonable fact-finder to do so).
6 The IJ also reasonably relied on three inconsistencies
7 between Maksud’s original and amended asylum applications,
8 which contain differing accounts of his encounters with the
9 Bangladesh Awami League (“BAL”), the ruling political party and
10 an opposition party to the Bangladesh Nationalist Party
11 (“BNP”), with which Maksud was affiliated. First, the
12 applications conflict as to Maksud’s experience at a 2009
13 protest. Maksud’s original application reports that he was
14 arrested, detained, and beaten over several days. His amended
15 application, in contrast, describes being beaten and shot with
16 rubber bullets at a protest, but omits mention of any arrest
17 or detention. Second, the applications are also inconsistent
18 regarding an alleged January 2010 arrest. Maksud’s original
19 application states that he was arrested in his home after he
20 left the hospital in January 2010 and was held for several weeks
21 before being released on bond. But in his amended application,
22 the January 2010 arrest took place at the BNP party office, and
23 Maksud was detained and tortured for 22 hours before being
4
1 released “with the help of an advocate,” making no mention of
2 any bond. Third, the original application omits any mention
3 of the two attacks on Maksud by the BAL described in the amended
4 application. See Xiu Xia Lin, 534 F.3d at 166 n.3 (explaining
5 that “[a]n inconsistency and an omission are, for these
6 purposes, functionally equivalent”). Because the original
7 application bore Maksud’s signature and he filed no complaint
8 against his prior attorney, the IJ was not required to accept
9 Maksud’s explanations that he did not sign that application and
10 that any error was his attorney’s fault. See Majidi, 430 F.3d
11 at 80.
12 Finally, the IJ also reasonably pointed to Maksud’s history
13 of attempting to gain status in the United States through other
14 improper means as undercutting his credibility. Maksud
15 conceded that he married a U.S. citizen solely to gain status
16 in the United States and that the only purpose of his October
17 2010 trip to the United States was to have his child born in
18 the United States and thereby for the child to be a U.S. citizen.
19 The IJ reasonably found that the circumstances of the previous
20 marriage detract from Maksud’s credibility. See, e.g., Falae
21 v. Gonzales, 411 F.3d 11, 15 (1st Cir. 2005) (sham marriage for
22 purpose of obtaining citizenship can support adverse
23 credibility finding). The IJ also reasonably found that
5
1 Maksud’s voluntary return to Bangladesh after the birth of his
2 child in the United States further undermined his credibility
3 given his allegations that he had been persecuted in Bangladesh
4 already. Maksud testified that he returned because “[a]t that
5 time, the conditions were not so bad,” but the IJ reasonably
6 rejected that explanation because, before leaving for the
7 United States, Maksud allegedly had been shot by the police and
8 hospitalized for 12 days—grounds he now cites in support of his
9 asylum application. See Majidi, 430 F.3d at 80.
10 Given these multiple inconsistencies and significant
11 omissions, we conclude that substantial evidence supports the
12 agency’s adverse credibility determination. See 8 U.S.C.
13 § 1158(b)(1)(B)(iii). The agency’s adverse credibility
14 determination is dispositive of Maksud’s application for
15 asylum, withholding of removal, and CAT relief. See Paul v.
16 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
17 For the foregoing reasons, the petition for review is
18 DENIED. As we have completed our review, any stay of removal
19 that the Court previously granted in this petition is VACATED,
20 and any pending motion for a stay of removal in this petition
21 is DISMISSED as moot. Any pending request for oral argument
22 in this petition is DENIED in accordance with Federal Rule of
23
6
1 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
2 34.1(b).
3 FOR THE COURT:
4 Catherine O=Hagan Wolfe, Clerk
7