17-4115 Bhuiyan v. Barr BIA
Vomacka, IJ
A205 643 430
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 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 22nd day of January, two thousand twenty. 5 6 PRESENT: 7 RICHARD C. WESLEY, 8 PETER W. HALL, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 MONIR AHAMMED BHUIYAN, AKA MONIR 14 HOSSAIN, 15 Petitioner, 16 17 v. 17-4115 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Visuvanathan Rudrakumaran, New 25 York, NY. 26 27 FOR RESPONDENT: Joseph H. Hunt, Assistant 28 Attorney General; Justin Markel, 29 Senior Litigation Counsel; 30 Margaret O’Donnell, Trial 31 Attorney, Office of Immigration
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1 Litigation, United States 2 Department of Justice, Washington, 3 DC. 4 5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby 7 ORDERED, ADJUDGED, AND DECREED that the petition for review 8 is DENIED. 9 Petitioner Monir Ahammed Bhuiyan, a native and citizen 10 of Bangladesh, seeks review of a December 1, 2017, decision 11 of the BIA affirming a February 27, 2017, decision of an 12 Immigration Judge (“IJ”) denying Bhuiyan’s application for 13 asylum, withholding of removal, and relief under the 14 Convention Against Torture (“CAT”). In re Monir Ahammed 15 Bhuiyan, No. A 205 643 430 (B.I.A. Dec. 1, 2017), aff’g No. A 16 205 643 430 (Immig. Ct. N.Y. City Feb. 27, 2017). We assume 17 the parties’ familiarity with the underlying facts and 18 procedural history in this case. 19 In his brief, Bhuiyan argues for the first time that the 20 agency failed to make an explicit adverse credibility 21 determination. In addition to being unexhausted, this 22 argument finds no support in the record. The IJ stated that 23 Bhuiyan was not credible and made specific findings, Bhuiyan
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1 challenged the adverse credibility determination on appeal to 2 the BIA, and the BIA agreed with the IJ’s adverse credibility 3 determination. Accordingly, we have reviewed both the BIA’s 4 and IJ’s decisions as to the adverse credibility determination. 5 See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). 6 We review the adverse credibility determination under the 7 substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); 8 Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). 9 “Considering the totality of the circumstances, and all 10 relevant factors, a trier of fact may base a credibility 11 determination on . . . the inherent plausibility of the 12 applicant’s . . . account, the consistency between the 13 applicant’s . . . written and oral statements . . . , the 14 internal consistency of each such statement, [and] the 15 consistency of such statements with other evidence of record 16 . . . without regard to whether an inconsistency, inaccuracy, 17 or falsehood goes to the heart of the applicant’s claim . . 18 . .” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an 19 IJ’s credibility determination unless, from the totality of 20 the circumstances, it is plain that no reasonable fact-finder 21 could make such an adverse credibility ruling.” Xiu Xia Lin
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1 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei 2 Gao, 891 F.3d at 76. Substantial evidence supports the 3 agency’s determination that Bhuiyan was not credible as to 4 his claim that he was persecuted by the Awami League and the 5 police on account of his membership in Jubo Dal, the youth 6 branch of the Bangladesh Nationalist Party (“BNP”). 7 The agency reasonably relied on Bhuiyan’s inconsistent 8 statements about the number of times he was attacked by Awami 9 League members and whether he was attacked by the police. 10 See 8 U.S.C. § 1158(b)(1)(B)(iii). At his credible fear 11 interview, Bhuiyan stated that he was attacked by Awami League 12 members once in 2009, he explicitly denied prior or subsequent 13 attacks, and he stated that he had never been mistreated by 14 police. In contrast, he testified that he was attacked by 15 Awami League members three times and that he was arrested, 16 detained, and severely beaten by the police in 2010. The 17 agency was not required to credit Bhuiyan’s explanation that 18 he was disoriented and nervous during his interview. See 19 Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A 20 petitioner must do more than offer a plausible explanation 21 for . . . inconsistent statements to secure relief; he must
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1 demonstrate that a reasonable fact-finder would be compelled 2 to credit his testimony.” (internal quotations omitted)); 3 Yun-Zui Guan, 432 F.3d at 397 n.6 (applicant’s “mere 4 recitation that he was nervous or felt pressured during an 5 airport interview will not automatically prevent” the agency 6 from relying on statements made during the interview). 7 Despite an error in the agency’s reliance on a third 8 inconsistency regarding whether Bhuiyan’s attackers pressured 9 him to switch parties, these major inconsistencies regarding 10 the bases of his claim provide substantial evidence to support 11 the adverse credibility determination. See Xian Tuan Ye v. 12 Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006) 13 (holding that a material inconsistency regarding the basis of 14 an applicant’s asylum claim is substantial evidence of 15 adverse credibility); see also Xiao Ji Chen v. U.S. Dep’t of 16 Justice, 471 F.3d 315, 338–39 (2d Cir. 2006) (denying petition 17 despite errors in adverse credibility determination because 18 there was substantial evidence for the determination absent 19 the errors). 20 Moreover, the adverse credibility determination is 21 bolstered by the agency’s implausibility findings. See
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1 8 U.S.C. § 1158(b)(1)(B)(iii); Wensheng Yan v. Mukasey, 509 2 F.3d 63, 66 (2d Cir. 2007) (“It is well settled that, in 3 assessing the credibility of an asylum applicant’s testimony, 4 an IJ is entitled to consider whether the applicant’s story 5 is inherently implausible.”). And the IJ’s findings are 6 sufficiently tethered to the record. See Siewe v. Gonzales, 7 480 F.3d 160, 168–69 (2d Cir. 2007) (An implausibility finding 8 that is based on “speculation that inheres in inference is 9 not ‘bald’ if the inference is made available to the 10 factfinder by record facts, or even a single fact, viewed in 11 the light of common sense and ordinary experience.”). The 12 IJ reasonably found implausible Bhuiyan’s testimony that he 13 was unaware of the BNP’s involvement in violence, because he 14 later admitted that he had heard about violence and war crimes 15 committed by BNP members and his memorandum of law in support 16 of his application acknowledged violence between the BNP and 17 Awami League. Additionally, the IJ reasonably found it 18 implausible that Bhuiyan would go to the police and turn over 19 threatening letters without making copies of them as he 20 testified that the police had destroyed a previous letter, 21 refused to investigate, and detained and beat him. Finally,
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1 as the agency found, Bhuiyan could not explain why local 2 higher-level BNP and Jubo Dal party members were able to 3 continue in their roles without interference while he had 4 allegedly been repeatedly targeted by the Awami League. 5 Finally, the agency did not err in finding that Bhuiyan’s 6 documentary evidence failed to rehabilitate his credibility. 7 “We generally defer to the agency’s evaluation of the weight 8 to be afforded to an applicant’s documentary evidence.” Y.C. 9 v. Holder, 741 F.3d 324, 332 (2d Cir. 2013). The IJ 10 reasonably afforded diminished weight to the letters and 11 affidavits from family, doctors, and fellow party members 12 because the authors were interested parties and/or not 13 subject to cross-examination, and some of the documents 14 lacked detail about the alleged persecution. See id. at 334 15 (deferring to agency’s decision to afford little weight to 16 relative’s letter from China because it was unsworn and from 17 an interested witness); Matter of H-L-H- & Z-Y-Z-, 25 I. & N. 18 Dec. 209, 215 (B.I.A. 2010) (finding that letters from alien’s 19 friends and family were insufficient to provide substantial 20 support for alien’s claims because they were from interested 21 witnesses not subject to cross-examination), overruled on
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1 other grounds by Hui Lin Huang v. Holder, 677 F.3d 130, 133– 2 38 (2d Cir. 2012). 3 Given Bhuiyan’s inconsistent statements and the 4 implausible aspects of his testimony, the agency’s adverse 5 credibility determination is supported by substantial 6 evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii). The adverse 7 credibility determination is dispositive of asylum, 8 withholding of removal, and CAT relief because all three forms 9 of relief are based on the same factual predicate. See Paul 10 v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). 11 For the foregoing reasons, the petition for review is 12 DENIED. All pending motions and applications are DENIED and 13 stays VACATED.
14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, 16 Clerk of Court