Md Mishu v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 25, 2022
• Docket: 16-73053
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 25 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MD NASIM UDDIN MISHU, No. 16-73053

Petitioner, Agency No. A206-677-795

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

Respondent.

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

Submitted May 17, 2022**

Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.

Md Nasim Uddin Mishu, a native and citizen of Bangladesh, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to

remand and dismissing his appeal from an immigration judge’s decision denying

his application for asylum, withholding of removal, and relief under 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). Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.

§ 1252. We review for substantial evidence the agency’s factual findings, applying

the standards governing adverse credibility determinations under the REAL ID

Act. Shrestha v. Holder, 590 F.3d 1034, 1039-40 (9th Cir. 2010). We review for

abuse of discretion the BIA’s denial of a motion to remand. Movsisian v. Ashcroft,

395 F.3d 1095, 1098 (9th Cir. 2005). We deny the petition for review.

Substantial evidence supports the agency’s adverse credibility determination

based on a lack of detail in Mishu’s testimony about his political party and the

harm he experienced, and inconsistencies within his testimony as to the timing of

the attack on the bridge and the fate of his brother. See Shrestha, 590 F.3d at 1048

(adverse credibility determination reasonable under “the totality of the

circumstances”). Mishu’s explanations do not compel a contrary conclusion. See

Lata v. INS, 204 F.3d 1241, 1245 (9th Cir. 2000). Substantial evidence also

supports the agency’s determination that Mishu did not present documentary

evidence that would otherwise establish his eligibility for relief. See Garcia v.

Holder, 749 F.3d 785, 791 (9th Cir. 2014) (applicant’s documentary evidence was

insufficient to rehabilitate his testimony). Thus, in the absence of credible

testimony, in this case, Mishu’s asylum and withholding of removal claims fail.

See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).

Substantial evidence supports the agency’s denial of Mishu’s CAT claim

2 16-73053 because it was based on the same testimony the agency found not credible, and

Mishu does not point to any other evidence in the record that compels the

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

consent or acquiescence of the government if returned to Bangladesh. See

Shrestha, 590 F.3d at 1048-49.

The BIA did not abuse its discretion in denying Mishu’s motion to remand

where he failed to establish the evidence submitted would likely change the result

in this case. See 8 C.F.R. § 1003.2(c)(1); Shin v. Mukasey, 547 F.3d 1019, 1025

(9th Cir. 2008) (individuals seeking remand or reopening “bear a heavy burden of

proving that, if proceedings were reopened, the new evidence would likely change

the result in the case.” (internal quotation marks omitted)); see also Angov v.

Lynch, 788 F.3d 893, 897 (9th Cir. 2015) (“Since a motion to remand is so similar

to a motion to reopen, the motion to remand should be drafted in conformity with

regulations pertinent to motions to reopen.” (citation and internal quotation marks

omitted)).

PETITION FOR REVIEW DENIED.

3 16-73053