Islam-Mia v. Holder

10-2430-ag
Islam-Mia v. Holder
BIA
Schoppert, IJ
A088 053 104
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 15th day of September, two thousand eleven.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 BARRINGTON D. PARKER,
9 REENA RAGGI,
10 Circuit Judges.
11 _______________________________________
12
13 MUHAMED SHAHIDUL ISLAM-MIA,
14 Petitioner,
15
16 v. 10-2430-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Thomas Vincent Massucci, New York,
24 New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Anthony P. Nicastro, Senior
28 Litigation Counsel; Sabatino F. Leo,
29 Trial Attorney, Office of
30 Immigration Litigation, Civil
31 Division, United States Department
32 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED.
5 Petitioner Muhamed Shahidul Islam-Mia, a native and
6 citizen of the People’s Republic of China, seeks review of a
7 May 21, 2010, order of the BIA, affirming the May 28, 2008,
8 decision of Immigration Judge (“IJ”) Douglas B. Schoppert,
9 denying his application for asylum, withholding of removal,
10 and relief under the Convention Against Torture (“CAT”). In
11 re Muhamed Shahidul Islam-Mia, No. A088 053 104 (B.I.A. May
12 21, 2010), aff’g No. A088 053 104 (Immig. Ct. N.Y. City May
13 28, 2008). We assume the parties’ familiarity with the
14 underlying facts and procedural history of the case.
15 Under the circumstances of this case, we have reviewed
16 both the IJ’s and the BIA’s decisions. See Yun-Zui Guan v.
17 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable
18 standards of review are well-established. See 8 U.S.C.
19 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
20 (2d Cir. 2009).
21 Substantial evidence supports the IJ’s adverse
22 credibility determination. As the IJ found: (1) although
2
1 Islam-Mia testified that, in 2003, he was hung upside down
2 and had hot water poured into his nose, those details were
3 omitted in his asylum application; (2) although Islam-Mia
4 testified that he still suffered health problems as a result
5 of the 2003 incident, the statement from his physician did
6 not indicate any such problems; and (3) although Islam-Mia
7 testified that he was severely beaten all over his body and
8 that his face was covered in blood after he was beaten,
9 photographs taken after the beating while he was detained
10 did not depict any visible signs of scarring, blood, or
11 bruises on his face and body. Because the agency was
12 entitled to rely on any discrepancy in finding Islam-Mia not
13 credible, the IJ’s reliance on these inconsistencies was not
14 improper. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu
15 Xia Lin v. Mukasey, 534 F.3d 162, 166-67 n.3 (2d Cir. 2008)
16 (noting that inconsistencies and omissions are “functionally
17 equivalent”).
18 The IJ also reasonably found Islam-Mia’s testimony
19 implausible. With regard to the photographs that Islam-Mia
20 submitted, the IJ found implausible that: (1) someone would
21 have been allowed to take photographs of Islam-Mia while he
22 was detained; and (2) the photographs were taken after
3
1 Islam-Mia was severely beaten and tortured. The IJ’s
2 implausibility finding was not impermissibly speculative,
3 given that Islam-Mia could not explain why the photographs
4 did not depict any blood or marks on his body. See Wensheng
5 Yan v. Mukasey, 509 F.3d 63, 66-67 (2d Cir. 2007) (finding
6 that so long as an IJ’s finding is “tethered to record
7 evidence, and there is nothing else in the record from which
8 a firm conviction of error could properly be derived,” the
9 Court will not disturb the inherent implausibility finding).
10 Moreover, there is no merit to Islam-Mia’s argument that he
11 was not provided the opportunity to explain his implausible
12 testimony, as he was asked why the photographs did not
13 depict any blood or marks on his body. Moreover, Islam-Mia
14 does not challenge, and therefore has waived any challenge
15 to the IJ’s implausibility finding regarding the warrant for
16 his arrest. See Yueqing Zhang v. Gonzales, 426 F.3d 540,
17 541 n.1, 545 n.7 (2d Cir. 2005) (holding that issues not
18 sufficiently argued in the briefs are considered waived and
19 normally will not be addressed on appeal).
20 Lastly, there is no merit to Islam-Mia’s argument that
21 the agency erred in giving diminished weight to the evidence
22 he submitted. See Xiao Ji Chen v. U.S. Dep’t of Justice,
4
1 471 F.3d 315, 342 (2d Cir. 2006) (finding that the weight
2 afforded to the applicant’s evidence in immigration
3 proceedings lies largely within the discretion of the
4 agency) (holding that this Court generally accords deference
5 to the agency’s evaluation of documentary evidence).
6 Accordingly, considering the totality of the
7 circumstances and all relevant factors, the IJ’s credibility
8 determination was supported by substantial evidence. See
9 8 U.S.C. § 1158(b)(1)(B)(iii). Because the only evidence of
10 a threat to Islam-Mia’s life or freedom depended upon his
11 credibility, the adverse credibility determination in this
12 case necessarily precludes success on his claim for asylum
13 and withholding of removal, as both claims were based on the
14 same factual predicate. See Paul v. Gonzales, 444 F.3d 148,
15 156 (2d Cir. 2006). Islam-Mia has not challenged the
16 agency’s denial of his CAT claim.
17 For the foregoing reasons, the petition for review is
18 DENIED. As we have completed our review, any stay of
19 removal that the Court previously granted in this petition
20 is VACATED, and any pending motion for a stay of removal in
21 this petition is DISMISSED as moot. Any pending request for
22 oral argument in this petition is DENIED in accordance with
5
1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
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