Md Emran v. Attorney General United States ( 2020 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_________________
No. 19-1091
_________________
MD TUSER EMRAN
a/k/a
EMRAN MD TUSER,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
_________________
On Petition for Review of an Order of the Board of Immigration Appeals
(Agency No. A216-052-024)
Immigration Judge: Daniel A. Morris
_________________
Submitted Under Third Circuit L.A.R. 34.1(a)
October 4, 2019
Before: SHWARTZ, SCIRICA, and FUENTES, Circuit Judges.
(Filed: February 13, 2020)
_________________
OPINION **
_________________
**
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
FUENTES, Circuit Judge.
Petitioner Md Tuser Emran, also known as Emran Md Tuser, seeks review of an
order of the Board of Immigration Appeals (“BIA”) dismissing the appeal, and in effect
affirming an Immigration Judge’s (“IJ”) decision to deny his applications for asylum,
withholding of removal, and protection under the Convention Against Torture (“CAT”).
For the following reasons, we will deny the petition for review.
I.
Emran is a native and citizen of Bangladesh. In September 2013, Emran was
admitted to the United States on a nonimmigrant F-1 student visa. Emran later fell out of
status by failing to attend school and working without authorization. Emran returned to
Bangladesh in July 2017. A short time later, he returned to the United States and applied
for re-admission in New York without valid entry documents. The Department of
Homeland Security (“DHS”) served Emran with a Notice to Appear charging him with
removability under 8 U.S.C. §1182(a)(7)(A)(i)(I) as an applicant for admission into the
United States without valid entry documents. DHS later added charges of removability
under 8 U.S.C. §§ 1182(a)(6)(G) and 1182(a)(9)(B)(i)(II). In October 2017, Emran
applied for asylum, withholding of removal, and CAT protection based on his political
opinion.
In support of his applications, Emran testified that he joined the Liberal
Democratic Party (“LDP”) in Bangladesh, eventually becoming president of the student
wing. One day, members of a political party called the Awami League (“AL”)
approached Emran and tried to convince him to join their party. When Emran declined,
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he claims he was beaten and his family was threatened. After escaping, Emran moved
out of his residence and into a college hostel.
Emran further testified that a few years later, members of the AL searched for him
at his family’s home. When the AL did not find Emran, they vandalized his home and
physically assaulted and kidnapped his brother. The men held Emran’s brother for seven
days until his family sold half of their land and paid the ransom. After that incident,
Emran lived in hiding in various locations. Nevertheless, on another occasion,
individuals from the AL vandalized Emran’s garment store and forced the store manager
to call Emran to set up a meeting. Emran waited for the store manager, but instead,
members of the AL showed up and beat Emran again. He spent two days in the
emergency room, and afterwards moved to Comilla, another city in Bangladesh.
Finally, Emran testified that while living in Comilla, he was falsely accused of
throwing bricks and explosives at police during a political rally, and he blamed the police
and members of the AL for his arrest. Eventually, Emran was released on bond and
ordered to appear at a future date. He failed to appear because he received threats and
was convicted in abstentia. Emran successfully appealed his conviction, and the court
ordered police to ensure the safety of Emran and his family. Emran then appeared in
court, and his conviction was overturned.
After reviewing Emran’s testimony and documentary evidence, the IJ denied
Emran’s applications. In doing so, the IJ made an adverse credibility finding, citing
inconsistencies in Emran’s submitted affidavits and his testimony, such as his failure to
disclose his previous arrest and corrected affidavits that pre-dated the date the IJ ordered
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the documents corrected. The IJ also found that even if Emran was credible, he did not
meet his burden to establish eligibility for relief.
As to Emran’s asylum claim, the IJ found that even though the harm Emran
experienced in Bangladesh may have been sufficiently severe to rise to the level of past
persecution, Emran failed to establish past persecution committed by government actors
or by private actors whom the government is unable or unwilling to control. While the IJ
noted, assuming he was credible, Emran provided sufficient evidence to show that his
political opinion is one central reason for the beatings he experienced, the Bangladeshi
police complied with a court order to protect Emran from AL members, and Emran was
eventually exonerated by the courts. Moreover, the IJ found insufficient evidence to
support Emran’s claim that he was persecuted by the government of Bangladesh because
the government demonstrated a willingness to protect Emran from threats by private
citizens, including members of the AL. Finally, because Emran failed to establish past
persecution, the IJ held that he was not entitled to the presumption of a well-founded fear
of future persecution.
As to Emran’s withholding of removal claim, the IJ held that because Emran did
not meet his burden of proving his eligibility for asylum, he also failed to establish that it
is more likely than not he would be persecuted on account of a protected category for
purposes of withholding of removal.
Regarding Emran’s CAT application, the IJ found, after considering all of the
evidence relevant to the possibility of future torture, Emran did not meet his burden to
show that he would more likely than not be tortured in Bangladesh “by or at the
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instigation of or with the consent or acquiescence of a public office or other person acting
in an official capacity.” 1 The IJ explained that, based on the record, Emran could avoid a
future threat to his life by relocating outside of the area of Dhaka where he received
threats from the group associated with the AL.
The BIA agreed with the IJ’s reasoning and affirmed the IJ’s decision. Emran
timely filed this petition for review.
II.
We have jurisdiction to review the BIA’s decision under 8 U.S.C. § 1252(a).
Where “the BIA adopts and affirms the decision of the IJ, as well as provides its own
reasoning,” we review both decisions. 2 We review factual findings—including findings
relating to an alien’s alleged fear of persecution and adverse credibility determinations—
under the substantial evidence standard. 3
III.
Emran argues that substantial evidence does not support the denial of his
applications for asylum, withholding of removal or CAT protection. We address each
application in turn.
1
Ohio App. 29 (quoting 8 C.F.R. § 1208.18(a)(1)).
2
Hashmi v. Att’y Gen., 531 F.3d 256, 259 (3d Cir. 2008).
3
See Sandie v. Att’y Gen., 562 F.3d 246, 251 (3d Cir. 2009); see also Chen v. Ashcroft,
376 F.3d 215, 222 (3d Cir. 2004); Emran argues that the BIA employed an
“inappropriately stringent standard” when evaluating his testimony, and thus we should
review the credibility determination de novo. Petitioner’s Br. 14. We reject this
argument as the BIA applied the correct standard in its evaluation. See 8 C.F.R.
§ 1003.1(d)(3)(i).
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A.
As an initial matter, we review the BIA’s finding that there was no clear error in
the IJ’s adverse credibility finding.
There were several omissions and contradictions in Emran’s testimony and
documentary evidence that cannot be ignored. For example, when Emran was permitted
additional time to translate statements from Bengali to English, the English translations
bore attestation stamps that predated the Bengali originals, and Emran failed to offer a
plausible explanation as to why. In another example, Emran failed to disclose his arrest
to immigration officers when applying for his F-1 visa. This bears on his credibility
because he contends, in part, that his arrest was persecution for his political opinion.
Other evidence submitted by Emran failed to rehabilitate these concerns. For
example, two letters Emran submitted from his criminal attorney in Bangladesh contained
contradictory statements, and medical records from the alleged attack by the AL on
Emran’s brother contradicted the date of the attack and the severity of the injury. Given
the totality of the circumstances, we conclude that substantial evidence supports the
conclusion that Emran’s testimony and evidence was not credible. 4
B.
Second, we consider Emran’s asylum claim. To qualify for asylum, Emran had to
show that he was a “refugee” as defined in 8 U.S.C. § 1101(a)(42)(A). A refugee is
someone who has suffered past persecution or has a well-founded fear of future
4
See 8 U.S.C. § 1158(b)(1)(B)(iii).
6
persecution in his country on account of race, religion, nationality, membership in a
particular social group, or political opinion, and is unable or unwilling to return to, or
avail himself of the protection of, the country owing to such persecution. 5 Moreover, the
persecution must be committed either by the government or by persons or an organization
that the government is unable or unwilling to control. 6
The BIA correctly determined that Emran failed to demonstrate a reasonable
probability of future persecution on account of his political opinion in support of the
LDP. To establish persecution based on political opinion, an alien must: 1) specify the
political opinion on which he relies; 2) show that he holds that opinion; and 3) show that
he has a well-founded fear of persecution based on that opinion. 7 As the BIA noted, the
Bangladeshi court ordered the police to protect Emran from threats by private citizens
and reopened his case, after which he was exonerated. As such, Emran failed to establish
that the Bangladeshi government participated in, or was unwilling to protect him from,
persecution or torture.
C.
Next, we consider Emran’s withholding of removal claim. Because Emran’s
asylum claim fails, his withholding of removal claim also fails. 8 To meet the standard for
withholding of removal, Emran needed to establish by a “clear probability” that, if he
5
8 C.F.R. §§ 1208.13(b)(1), (2)(i)(A)-(C).
6
Matter of A-B, 27 I&N Dec. 316, 337 (BIA 2018) (quoting Matter of Acosta, 19 I&N
Dec. 211, 222 (BIA 1985)).
7
Fatin v. INS, 12 F.3d 1233, 1242 (3d Cir. 1993).
8
Guo v. Ashcroft, 386 F.3d 556, 561 n.4 (3d Cir. 2004).
7
returned to Bangladesh, his life or freedom “would be threatened” on account of his
political opinion, which is more demanding than the standard governing eligibility for
asylum. 9 As discussed above, Emran failed to establish that the government of
Bangladesh is unwilling or unable to protect him, and in fact, the record shows that the
government protected Emran in the past.
D.
Finally, we consider Emran’s CAT claim. For CAT protection, Emran had to
demonstrate that if he were removed to Bangladesh, it is more likely than not that he
would be tortured by or at the instigation of, or with the consent or acquiescence of, a
public official. 10
The record here does not compel the conclusion that Emran made such a showing.
To the contrary, as discussed above, the government of Bangladesh has already
demonstrated that it is willing and able to assist Emran. Both the police and the court
system assisted and protected him at a time when the AL was the ruling party. This
undercuts Emran’s claim that “the relationship between the police and the [AL] satisfies
the requirement of ‘acquiescence.’” 11 Accordingly, we reject Emran’s claims as they
relate to CAT protection.
9
INS v. Cardoza-Fonesca, 480 U.S. 421, 430-31 (1987); see also 8 U.S.C. § 1231(b)(3);
INS v. Stevic, 467 U.S. 407, 429-30 (1984); Valdiviezo-Galdamez v. Att’y Gen., 663 F.3d
582, 591 (3d Cir. 2011).
10
See 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1).
11
Petitioner’s Br. at 33.
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IV.
For the foregoing reasons, we will deny the petition for review.
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