Islam v. Holder

11-4767
Islam v. Holder
BIA
Weisel, IJ
A096 426 757
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 27th day of September, two thousand twelve.
5
6 PRESENT:
7 RICHARD C. WESLEY,
8 RAYMOND J. LOHIER, JR.,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _______________________________________
12
13 MOHD NURUL ISLAM,
14 Petitioner,
15
16 v. 11-4767
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Joshua Bardavid, New York, New York.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Leslie McKay,
27 Assistant Director, Christopher
28 Buchanan, Trial Attorney, Office of
29 Immigration Litigation, Civil
30 Division, United States Department
31 of Justice, Washington, 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
4 is DENIED.
5 Mohd Nurul Islam, a native and citizen of Bangladesh,
6 seeks review of an October 19, 2011 order of the BIA,
7 affirming the March 17, 2010 decision of an Immigration
8 Judge (“IJ”), which denied his application for withholding
9 of removal and relief under the Convention Against Torture
10 (“CAT”). In re Mohd Nurul Islam, No. A096 426 757 (B.I.A.
11 Oct. 19, 2011), aff’g No. A096 426 757 (Immig. Ct. N.Y. City
12 A.K. Marsh. 17, 2010). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Under the circumstances of this case in which the BIA
15 agrees with the IJ's conclusion that Islam is not credible,
16 we have reviewed both the BIA’s and IJ’s opinions. Yun-Zui
17 Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The
18 applicable standards of review are well established. See 8
19 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
20 513 (2d Cir. 2009).
21 As an initial matter, we decline to review Islam’s
22 unexhausted argument that the interpreter was unable to
23 accurately and properly translate his testimony during his
24 merits hearing. See Lin Zhong v. U.S. Dep’t of Justice, 480
2
1 F.3d 104, 122 (2d Cir. 2007). Thus, the sole issue before
2 us is whether the agency’s adverse credibility finding is
3 supported by substantial evidence.
4 For applications for relief such as Islam’s that are
5 governed by the REAL ID Act, the agency may, considering the
6 totality of the circumstances, base a credibility finding on
7 an applicant’s demeanor, the plausibility of his account,
8 and inconsistencies in his statements, without regard to
9 whether they go “to the heart of the applicant’s claim.”
10 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(c). Here, the
11 agency did not err in denying relief, as its inconsistency
12 and corroboration findings provided substantial evidence for
13 its adverse credibility determination.
14 In finding Islam not credible, the agency reasonably
15 relied on Islam’s failure to testify consistently regarding
16 whether he had suffered physical harm when six members of
17 the Awami League (a rival political party) broke into his
18 family’s home in search of him. See Xiu Xia Lin v. Mukasey,
19 534 F.3d 162, 167 (2d Cir. 2008) (per curiam). The IJ was
20 not required to specifically request an explanation for this
21 inconsistency, as it was obvious on its face. Ming Shi Xue
22 v. BIA, 439 F.3d 111, 122 n.13 (2d Cir. 2006), and in any
23 event Islam was given an opportunity to explain the
3
1 inconsistency on cross-examination. Moreover, the agency
2 reasonably relied on a discrepancy between Islam’s testimony
3 and medical certificate with respect to whether Islam had
4 received medical treatment following his alleged altercation
5 with members of the Awami League. See Xiu Xia Lin, 534 F.3d
6 at 167. A reasonable fact finder would not have been
7 compelled to credit Islam’s explanation for this
8 inconsistency as it was non-responsive. See Majidi v.
9 Gonzales, 430 F.3d 77, 81 (2d Cir. 2005).
10 Moreover, having questioned Islam’s credibility, the
11 agency reasonably relied on Islam’s failure to present
12 evidence to corroborate his claim that members of the Awami
13 League broke into his family’s home and attacked and
14 threatened him. See Biao Yang v. Gonzales, 496 F.3d 268,
15 273 (2d Cir. 2007) (per curiam). The agency also did not
16 err in finding that the evidence Islam submitted was
17 insufficient to rehabilitate his otherwise incredible
18 testimony. See id. Specifically, the agency was not
19 required to credit a letter from a member of a Bangladeshi
20 bar association because the affiant did not establish that
21 he possessed expert knowledge of Bangladeshi politics or
22 human rights conditions in Bangladesh. See Xiao Ji Chen v.
23 U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006)
4
1 (finding that the weight afforded to the applicant’s
2 evidence in immigration proceedings lies largely within the
3 discretion of the agency). Nor was the agency required to
4 credit a letter from the Secretary General of the political
5 party of which Islam was a member because the letter was
6 vague and contradicted Islam’s testimony with respect to the
7 type of abuse he suffered while in police custody. Id.
8 Ultimately, given the inconsistency and corroboration
9 findings, the agency’s adverse credibility determination is
10 supported by substantial evidence. See Xiu Xia Lin, 534
11 F.3d at 166-67. Because Islam’s claims for both withholding
12 of removal and CAT relief are based on the same assertions
13 that the IJ found not to be credible, the adverse
14 credibility determination in this case necessarily precludes
15 success on both claims. See Paul v. Gonzales, 444 F.3d 148,
16 156 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice,
17 426 F.3d 520, 523 (2d Cir. 2005).
18 For the foregoing reasons, the petition for review is
19 DENIED.
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
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