Khan v. Holder

10-3224-ag
Khan v. Holder
BIA
Reid, IJ
A098 929 668
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 15th day of May, two thousand twelve.
PRESENT:
ROSEMARY S. POOLER,
GERARD E. LYNCH,
Circuit Judges.1
_______________________________________
Zanas Khan,
Petitioner,
v. 10-3224-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Zanas Khan, pro se, Buffalo, New
York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Douglas E. Ginsburg,
Assistant Director; Paul Fiorino,
Senior Litigation Counsel, Office of
Immigration Litigation, Civil
Division, United States Department
of Justice, Washington, D.C.
1
The Honorable Roger J. Miner, originally a member of the panel, died on
February 18, 2012. The two remaining members of the panel, who are in
agreement, have determined the matter. See 28 U.S.C. § 46(d); 2d Cir. IOP
E(b); United States v. Desimone, 140 F.3d 457 (2d Cir. 1998).
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Zanas Khan, a native and citizen of
Pakistan, seeks review of a final order of removal, In re
Zanas Khan, No. A098 929 668 (B.I.A. July 12, 2010). We
assume the parties’ familiarity with the underlying facts
and procedural history. The only issue for review is
whether the agency erred in denying Khan’s applications for
asylum, withholding of removal, and relief under the
Convention Against Torture based on an adverse credibility
determination.
Where the BIA issues its own decision and does not
adopt the IJ decision, we review only the BIA decision. See
Huang v. Holder, 591 F.3d 124, 127 (2d Cir. 2010). We
review the agency's factual findings, including adverse
credibility determinations, under the substantial evidence
standard, treating them as “conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.”
8 U.S.C. § 1252(b)(4)(B); see Xiu Xia Lin v. Mukasey, 534
F.3d 162, 165 (2d Cir. 2008). Because Khan filed his
application for relief after May 11, 2005, we apply the
2
credibility standard imposed by the REAL ID Act of 2005
("REAL ID Act"), Pub. L. No. 109-13, Div. B, 119 Stat 302
(2005). Under that standard, considering the totality of
the circumstances, an IJ may base an adverse credibility
determination on any inconsistencies or inaccuracies in an
asylum applicant’s statements without regard to whether they
go “to the heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii).
Substantial evidence supported the agency’s adverse
credibility determination. The Board identified three
inconsistencies or omissions in Khan’s statements and
determined that the IJ had not erred in relying on them.
Our review of the record confirms that the Board accurately
described the discrepancies, and that the discrepancies
reasonably cast doubt on Khan’s veracity. In particular,
Khan’s attachment to his asylum application described an
attack against Khan’s brother that was precipitated by
Khan’s expected attendance at his cousin’s wedding, but Khan
failed to mention that attack at his 2006 hearing, even
after the IJ prompted him to provide any additional reasons
he feared return to Pakistan.
While Khan plausibly suggested that translation
difficulties contributed to the IJ’s adverse determination,
3
the BIA was not compelled to credit that explanation because
Khan had requested the Urdu interpreter and had not
expressed an inability to understand her until after the IJ
had denied relief. See Majidi v. Gonzales, 430 F.3d 77, 80
(2d Cir. 2005) (“A petitioner must do more than offer a
plausible explanation for his inconsistent statements to
secure relief; he must demonstrate that a reasonable
fact-finder would be compelled to credit his testimony.”
(internal quotation marks omitted)). Moreover, Khan failed
to identify any specific inaccuracies in the IJ’s
determination attributable to translation error.
Finally, the Board did not err in basing its affirmance
in part on Khan’s failure to provide corroborating evidence.
Once the IJ concluded that Khan was incredible, the IJ could
require Khan to present reasonably available corroborating
evidence to support his application. See Yan Juan Chen v.
Holder, 658 F.3d 246, 252 (2d Cir. 2011).
For the foregoing reasons, the petition for review is
DENIED and the pending motion for a stay of removal is
DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
4