Maeen Uddin v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 7, 2020
• Docket: 19-15094
• Status: Unpublished

Opinion

USCA11 Case: 19-15094 Date Filed: 10/07/2020 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-15094 Non-Argument Calendar ________________________

Agency No. A215-735-001

MAEEN UDDIN,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(October 7, 2020)

Before ROSENBAUM, JILL PRYOR, and BRANCH, Circuit Judges.

PER CURIAM: USCA11 Case: 19-15094 Date Filed: 10/07/2020 Page: 2 of 9

Facing removal from the United States for entering and remaining without

authorization, Maeen Uddin, a native and citizen of Bangladesh, applied for asylum,

withholding of removal, and relief under the United Nations Convention Against

Torture (“CAT”). Uddin claimed that he had twice been physically attacked by

members of the ruling Awami League party due to his active membership in an

opposition party, and that he feared persecution by the Awami League if he returned

to Bangladesh. An Immigration Judge (“IJ”) denied his applications and ordered his

removal. The IJ determined that Uddin’s testimony was not credible for several

reasons, including that he was evasive and gave inconsistent answers. Uddin

appealed to the Board of Immigration Appeals (“BIA”), which affirmed the IJ’s

adverse credibility determination and determined that Uddin failed to meet the

standard for asylum, withholding of removal, and CAT relief. Uddin now petitions

this Court for review of the BIA’s decision.

We review only the decision of the BIA, except to the extent that the BIA

expressly adopted or agreed with the IJ’s opinion. Ayala v. U.S. Att’y Gen., 605 F.3d

941, 947–48 (11th Cir. 2010). We review the IJ’s opinion to the extent that the BIA

has found that the IJ’s reasons were supported by the record, and we review the

BIA’s decision with regard to those matters on which it rendered its own opinion

and reasoning. See Seck v. U.S. Att’y Gen., 663 F.3d 1356, 1364 (11th Cir. 2011).

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Here, we will review both the IJ’s and BIA’s decisions to the extent of their

agreement. See id.

We review factual findings, including credibility determinations, under the

substantial-evidence test. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1254–55 (11th Cir.

2006); see D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 818 (11th Cir. 2004) (“The

trier of fact must determine credibility, and [we] may not substitute [our] judgment

for that of the BIA with respect to credibility findings.”). Review for substantial

evidence is deferential and is based on a construction of the record evidence that is

most favorable to the agency’s decision. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d

1341, 1350–51 (11th Cir. 2009). We must affirm the agency’s decision “if it is

supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” Id. at 1351 (quotation marks omitted). Findings of fact may

be reversed only if the record compels a different result. Id. In other words, the

mere fact that the record may support a contrary conclusion is not enough to justify

reversal of the agency’s findings. Id.

A noncitizen applying for asylum must prove, with reliable and specific

evidence, that he is a “refugee.” 8 U.S.C. § 1158(b)(1)(B)(i); Forgue v. U.S. Att’y

Gen., 401 F.3d 1282, 1287 (11th Cir. 2005). A refugee is someone unable or

unwilling to return to his country of nationality “because of persecution or a well-

founded fear of persecution on account of race, religion, nationality, membership in

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a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). The

applicant must demonstrate that he (1) was persecuted in the past on account of a

protected ground or (2) has a well-founded fear that he will be persecuted in the

future on account of a protected ground. Ruiz, 440 F.3d at 1257. An applicant for

withholding of removal must establish similar, but more stringent, requirements. D-

Muhumed, 388 F.3d at 819. Finally, an applicant seeking protection under CAT

must establish that it is more likely than not that he would be tortured by or with the

acquiescence of the government if removed. Id. at 819–20.

The applicant’s credible testimony, standing alone, may be sufficient to meet

his burden. Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1231 (11th Cir. 2006). But if

the applicant is found not credible and has not provided any corroborating evidence,

an adverse credibility determination alone may be sufficient to support the denial of

his claims for relief from removal. Forgue, 401 F.3d at 1287. Nevertheless, where

the applicant offers evidence beyond his own testimony, the agency has a duty to

consider that other evidence even if it finds that the applicant is not credible. Id.

In challenging an adverse credibility finding, the noncitizen bears the burden

of showing that it “was not supported by specific, cogent reasons or was not based

on substantial evidence.” Id. (quotation marks omitted). Factors relevant to a

credibility determination include, but are not limited to the demeanor, candor, and

responsiveness of the applicant; the plausibility of the applicant’s account; the

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consistency between the applicant’s written and oral statements; the internal

consistency of each statement; and the consistency of the applicant’s statements with

other record evidence, including country reports. 8 U.S.C. § 1158(b)(1)(B)(iii).

Inconsistencies and inaccuracies need not “go[] to the heart of the applicant’s claim”

to support an adverse credibility finding, id., but they also cannot be “wholly

immaterial,” Kueviakoe v. U.S. Att’y Gen., 567 F.3d 1301, 1305 (11th Cir. 2009).

Moreover, because of the deferential standard of review, a reasonable explanation

for inconsistencies in the applicant’s testimony does not necessarily compel reversal

of the IJ’s adverse credibility determination. Chen, 463 F.3d at 1233.

The BIA offered two main reasons for agreeing with the IJ’s adverse

credibility determination: (1) Uddin provided “evasive, vague and internally

inconsistent testimony” when questioned about his reasons for obtaining a passport

four months before the February 2018 assault that purportedly precipitated his

departure from Bangladesh; and (2) Uddin’s testimony that he was on a “target list”

and feared for his life was vague and equivocal and inconsistent with his decision to

depart Bangladesh through ordinary channels using a government-issued passport

that bore his name.1

1 The BIA disagreed with the IJ’s other stated reasons for the adverse credibility determination, but it concluded that the determination was still valid because the IJ otherwise relied on permissible considerations that were supported by the record. 5 USCA11 Case: 19-15094 Date Filed: 10/07/2020 Page: 6 of 9

Here, Uddin has not shown that the record compels a finding that he provided

credible testimony in support of his applications for asylum, withholding of removal,

and CAT relief. The BIA offered specific and cogent reasons, supported by

substantial evidence, for sustaining the IJ’s adverse credibility finding.

As to the first reason, the BIA explained that Uddin, despite being given

multiple “opportunities to explain what his reasons were for obtaining a passport,”

“simply repeated that it was not his intention to leave the country.” While Uddin

initially stated that he had hired an agent to procure him a passport because he was

“having some difficulties at home” or “some problem[s],” he did not explain what

these difficulties or problems were in response to questioning by both the

government and the IJ. Uddin later asserted that there were “many, many problems

. . . going on inside the country,” but the only example he cited, though certainly

terrible, was the death of a friend in December 2018 that, as the BIA noted, occurred

after Uddin had already obtained his passport and left the country. The BIA

concluded that this “vacillating and unresponsive” testimony supported the IJ’s

decision not to credit Uddin’s explanations regarding why he obtained a passport

months before his alleged February 2018 assault.

Uddin maintains that his testimony on this matter was “consistent and

credible” and that people routinely obtain passports for purposes other than when

they are preparing to leave their country immediately, such as identification. But in

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light of Uddin’s inability to provide a clear or consistent answer for why he obtained

the passport, other than repeatedly insisting that he did not obtain the passport in

anticipation of leaving the country, and his invocation of an event that occurred after

he had already obtained the passport, we must conclude that the adverse credibility

determination was based on specific, cogent reasons and was supported by

substantial evidence. See Forgue, 401 F.3d at 1287.

As to the second reason, the BIA found that the IJ reasonably doubted Uddin’s

assertion that he was on a “target list” that subjected him to being killed by the

Awami League with the help of the police. Uddin testified the Awami League

maintained a “target list” and that individuals on this list were found, abducted, and

killed. As the BIA noted, though, Uddin’s testimony as to how he came to know

about the target list was “very vague and equivocal.” Uddin simply stated that

“somehow or other we have come to know that this is the system.” The BIA further

discounted Uddin’s testimony on these matters because he had used a government-

issued passport in his name to depart Bangladesh through ordinary means in April

2018. The BIA found that this action was inconsistent with his stated fear of being

found and killed by the Awami League, who he said had a “very strong connection

network” throughout the country and a “direct connection with the police.”

Uddin responds that he was “being persecuted by a local organization of the

Awami League, which does not necessarily preclude applying for and obtaining a

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passport in the usual way.” Yet Uddin testified that he was not safe anywhere in the

country due to the Awami League’s “very strong connection network” “all over the

country.” In light of Uddin’s testimony about the breadth and strength of the Awami

League’s influence, we cannot conclude it was unreasonable for the BIA and IJ to

find his actions in leaving the country somewhat inconsistent with this testimony.

So while the record may be viewed to support a contrary conclusion, we cannot say

it compels a finding that Uddin’s testimony on these points was credible. See

Kazemzadeh, 577 F.3d at 1351.

For these reasons, we conclude that the BIA and IJ offered specific and cogent

reasons, supported by substantial evidence, for the adverse credibility finding.

Finally, substantial evidence supports the BIA’s finding that Uddin could not

sustain his burdens for asylum, withholding of removal, or CAT relief in the absence

of credible testimony. See id. Without his credible testimony, Uddin cannot show

that he was subject to past persecution in Bangladesh. Nor does Uddin appear to

contend that his other evidence—consisting of letters and affidavits from family,

friends, and members of his party, among others—independently established a well-

founded fear of future persecution or otherwise met his burden for relief from

removal. Rather, Uddin continues to rely on his testimony in arguing that he

established eligibility for asylum and entitlement to withholding of removal and

CAT relief. We therefore defer to the BIA’s conclusion on these matters.

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In sum, we deny Uddin’s petition for review.

PETITION DENIED.