Kabir Shamim v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 8, 2022
• Docket: 17-71181
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUL 8 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KABIR HOSSAIN SHAMIM, No. 17-71181

Petitioner, Agency No. A206-914-116

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted June 10, 2022** Portland, Oregon

Before: SCHROEDER and SANCHEZ, Circuit Judges, and ANTOON,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable John Antoon II, United States District Judge for the Middle District of Florida, sitting by designation. Kabir Shamim, a native and citizen of Bangladesh, petitions for review of a

decision by the Board of Immigration Appeals (BIA) upholding the Immigration

Judge’s (IJ) denial of his application for asylum, withholding of removal, and

protection under the Convention Against Torture (CAT). We have jurisdiction

under 8 U.S.C. § 1252 and deny the petition.

In his application for relief, Mr. Shamim claimed a fear of persecution and

torture at the hands of the Awami League—the governing political party in

Bangladesh—based on his membership in the rival Bangladeshi Nationalist Party

(BNP). Following multiple days of testimony, the IJ determined that Mr. Shamim

lacked credibility based on various inconsistencies and implausibilities in his story

and concluded that the record evidence did not otherwise establish a basis for

relief. The BIA found no clear error in the IJ’s determinations and dismissed Mr.

Shamim’s appeal in full.

“In reviewing this petition, ‘we consider only the grounds relied upon’ by

the BIA.” Singh v. Holder, 649 F.3d 1161, 1164 n.6 (9th Cir. 2011) (en banc)

(quoting Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004)). “We review

legal questions de novo and factual findings, including adverse credibility

determinations, for substantial evidence.” Mairena v. Barr, 917 F.3d 1119, 1123

2 (9th Cir. 2019). “Under the substantial evidence standard, ‘administrative findings

of fact are conclusive unless any reasonable adjudicator would be compelled to

conclude to the contrary.’” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)).

The agency’s adverse credibility determination is supported by substantial

evidence. The BIA pointed to multiple inconsistencies in Mr. Shamim’s testimony,

including where on his body he was stabbed during an altercation with Awami

League members and whether he had heard about violent acts perpetrated by the

BNP. The BIA found it implausible that Mr. Shamim would forget to testify about

the police coming to his parents’ home to arrest him, as he had previously stated

that this incident pushed him to seek asylum in the United States. Further, the BIA

credited the IJ’s finding that Mr. Shamim struggled to answer basic questions

about the BNP and its activities.

These bases represent “specific and cogent reasons” for an adverse

credibility determination, see Tamang v. Holder, 598 F.3d 1083, 1094 (9th Cir.

2010), and we cannot say that “any reasonable adjudicator would be compelled to

conclude to the contrary,” Mairena, 917 F.3d at 1123 (quoting 8 U.S.C. §

1252(b)(4)(B)). Substantial evidence therefore supports the agency’s adverse

3 credibility determination, and the agency did not err in denying Mr. Shamim’s

application for asylum and withholding of removal on that basis.

Substantial evidence also supports the agency’s denial of CAT relief. The

record supports the BIA’s finding that Mr. Shamim failed to show he would more

likely than not be tortured “at the instigation of or with the consent or acquiescence

of a public official or other person acting in an official capacity” if he returned to

Bangladesh. 8 C.F.R. § 1208.18(a)(1).

“An adverse credibility determination does not, by itself, necessarily defeat a

CAT claim.” Garcia v. Holder, 749 F.3d 785, 791 (9th Cir. 2014). “But when the

petitioner’s ‘testimony [is] found not credible, to reverse the BIA’s decision

[denying CAT protection,] we would have to find that the [country] reports alone

compelled the conclusion that [the petitioner] is more likely than not to be

tortured.’” Shrestha, 590 F.3d at 1048–49 (all but third alteration in original)

(quoting Almaghzar v. Gonzales, 457 F.3d 915, 922–23 (9th Cir. 2006)).

In light of the agency’s adverse credibility determination, the additional

evidence submitted, including the country reports, does not compel the conclusion

that Mr. Shamim is more likely than not to be tortured. While the record reflects

4 ongoing political violence in Bangladesh, there is no evidence that Mr. Shamim

will be specifically targeted for torture in the future.

The petition is DENIED.