Md J Islam v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 7, 2019
• Docket: 16-72939
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 7 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MD J ISLAM, No. 16-72939

Petitioner, Agency No. A206-915-545

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted November 5, 2019** Seattle, Washington

Before: GOULD and NGUYEN, Circuit Judges, and R. COLLINS,*** District Judge.

Md. Johirul Islam, a native and citizen of Bangladesh, petitions for review of

the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from the

* 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 Raner C. Collins, United States District Judge for the District of Arizona, sitting by designation. Immigration Judge’s (“IJ”) denial of asylum and withholding of removal.1 Islam

testified that he fears persecution from the Awami League for his involvement with

the Bangladesh National Party. Islam also argues that the IJ violated his due

process rights by failing to give him adequate notice of his right to obtain counsel

and an opportunity to do so. We have jurisdiction under 8 U.S.C. § 1252, and we

deny Islam’s petition for review.

1. Substantial evidence supported the IJ’s adverse credibility finding. Kin v.

Holder, 595 F.3d 1050, 1054 (9th Cir. 2010) (“We review an adverse credibility

finding for substantial evidence.”). The IJ and BIA identified at least five

inconsistencies between Islam’s in-court testimony, the credible fear interview, the

Record of Sworn Statement, and other record evidence. For example, Islam was

inconsistent about the year he first encountered the Awami League, and the IJ did

not find his explanation about the inconsistency to be adequate. Islam also claimed

during his interview and in his asylum application that he was physically attacked

1 The IJ also denied Islam’s application for protection under the Convention Against Torture (“CAT”). However, the BIA deemed the issue waived because Islam had “not meaningfully appeal[ed] the denial of his application for protection under the [CAT]” to the BIA. To the extent Islam now raises the CAT issue, we lack jurisdiction to review it because Islam failed to exhaust his administrative remedies. See Vargas v. U.S. Dep’t of Immigration & Naturalization, 831 F.2d 906, 907–08 (9th Cir. 1987) (“Failure to raise an issue in an appeal to the BIA constitutes a failure to exhaust remedies with respect to that question and deprives this court of jurisdiction to hear the matter.”).

2 in May 2013, December 2013, and January 2014. But he testified at the hearing

that during the December 2013 incident, he was not beaten; rather, he was

threatened and allowed to walk away.

2. The BIA did not err in concluding that the IJ had given Islam adequate

notice of his right to obtain counsel and an opportunity to do so. “The BIA’s

decision will be reversed on due process grounds if (1) the proceeding was ‘so

fundamentally unfair that the alien was prevented from reasonably presenting his

case,’ and (2) the alien demonstrates prejudice, ‘which means that the outcome of

the proceeding may have been affected by the alleged violation.’” Ibarra-Flores v.

Gonzales, 439 F.3d 614, 620–21 (9th Cir. 2006) (quoting Colmenar v. INS, 210

F.3d 967, 971 (9th Cir. 2000)).

The IJ continued Islam’s removal proceeding for two weeks to give Islam an

opportunity to search for counsel. When Islam returned to court without

representation, he stated that he would “proceed [him]self.” The IJ nonetheless

advised at a subsequent hearing that Islam could retain counsel at any time before

the merits hearing. Islam was thus given a period of approximately six months to

retain counsel—between his initial court appearance on December 23, 2014 and

the merits hearing on June 25, 2015. In sum, Islam fails to establish that the

proceedings were so fundamentally unfair that he was prevented from reasonably

presenting his case or that he suffered prejudice.

3 PETITION FOR REVIEW DENIED.