Saiful Islam v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 6, 2018
• Docket: 17-15439
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-15439 Non-Argument Calendar ________________________

Agency No. A209-998-011

SAIFUL ISLAM, Petitioner,

versus

U.S. ATTORNEY GENERAL, Respondent.

__________________________

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

(September 6, 2018)

Before WILLIAM PRYOR, NEWSOM and JULIE CARNES, Circuit Judges.

PER CURIAM:

Saiful Islam petitions for review of an order that affirmed the denial of his

applications for asylum, withholding of removal, and protection under the Case: 17-15439 Date Filed: 09/06/2018 Page: 2 of 6

Immigration and Nationality Act and the United Nations Convention Against

Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. 8

U.S.C. §§ 1158(b), 1231(b)(3). Islam challenges the denial of his fourth motion for

a continuance. Islam also challenges the finding of the Board of Immigration

Appeals and the immigration judge that he failed to provide credible evidence that

he was a native and citizen of the People’s Republic of Bangladesh or that he

suffered past persecution or feared future persecution on account of his political

opinion. We deny Islam’s petition.

We review the denial of a motion for a continuance for abuse of discretion,

Chacku v. U.S. Att’y Gen., 555 F.3d 1281, 1285 (11th Cir. 2008), under which our

“review is limited to determining whether . . . [there has been an exercise of

administrative] discretion in an arbitrary or capricious manner,” Zhang v. U.S.

Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009). We review the decision of the

Board to determine whether it is “supported by reasonable, substantial, and

probative evidence on the record considered as a whole.” Carrizo v. U.S. Att’y

Gen., 652 F.3d 1326, 1330 (11th Cir. 2011) (quoting Al Najjar v. Ashcroft, 257

F.3d 1262, 1284 (11th Cir. 2001)). “[F]actual determinations, including credibility

determinations, . . . can be reversed only if the evidence compels a reasonable fact

finder to find otherwise.” Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1230–31 (11th

Cir. 2006) (internal quotation marks and citation omitted). When the Board adopts

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the reasoning of the immigration judge, we also review the decision of the

immigration judge. Carrizo, 652 F.3d at 1330.

We cannot say that it was arbitrary and capricious to deny Islam’s fourth

motion to continue. Islam offered no “good cause,” see 8 C.F.R. § 1003.29, to

justify another delay in his removal proceeding. In February 2017, the immigration

judge informed Islam of his right to counsel, gave him a list of organizations that

could provide legal assistance, and continued his hearing for more than a month.

The immigration judge granted Islam three additional continuances, warned him

that the absence of counsel would not delay his removal proceedings, and

scheduled Islam’s removal hearing for June 21, 2017. The morning of Islam’s

removal hearing, attorney Zubaida Iqbal moved for a continuance on the ground

that she had been hired the day before and needed time to prepare, but Iqbal had

entered a notice of appearance in Islam’s proceeding in April 2017 and represented

him at his bond hearing. And Iqbal’s motion to continue was identical to the one

she filed before Islam’s bond hearing. The immigration judge did not abuse his

discretion by refusing to further delay Islam’s removal hearing when Iqbal failed to

appear at the hearing or to explain in her motion why a continuance was necessary

when she was familiar with Islam’s case and the documents relating to his

applications for relief. See Chacku, 555 F.3d at, 1285.

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Substantial evidence supports the finding that Islam failed to provide

credible evidence of his identity. To be eligible for asylum and withholding of

removal, an alien must submit specific and credible evidence that he is a citizen

and national of the country from which he seeks refuge. Forgue v. U.S. Att’y Gen.,

401 F.3d 1282, 1287 (11th Cir. 2005); Matter of O-D-, 21 I. & N. Dec. 1079, 1081

(BIA 1998). Islam failed initially to produce any identification, and the

identification card that he later submitted appeared to be fraudulent. The paper card

had been laminated twice, and Islam’s identification number failed to match a

national in the database created by the government of Bangladesh. Islam testified

that he lost his passport while traveling to the United States and that his parents

were unable to send him his identification records because their home was

“vandalized” and they were “[un]able to go home,” yet he failed to produce any

evidence to corroborate that he had obtained a passport from Bangladesh or that his

family’s home was inaccessible. See Chen, 463 F.3d at 1231. Islam argues that he

should have been given an opportunity to address the validity of his identification

card and that the government violated a regulation during his removal hearing by

submitting a printout from the Bangladeshi database without having it translated

into English, but we lack jurisdiction to consider arguments that Islam failed to

present to the immigration judge or raise in his appeal to the Board. See Amaya-

Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006).

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Substantial evidence also supports the finding that Islam’s claim of past

persecution and fear of future persecution was not credible, and the Board and the

immigration judge provided specific, cogent reasons to support that finding. See

Chen, 463 F.3d at 1232. Islam gave inconsistent accounts about when and how

many people attacked him for being an “ordinary member” of the Liberal

Democratic Party. Islam stated in his application that he was attacked on March 26,

2015, June 6, 2015, and July 3, 2016, but later he testified that the last two attacks

occurred on July 3, 2015, and on June 6, 2016. Islam’s application stated that the

first incident involved an unspecified number of persons beating him with wooden

sticks, the second incident involved 10 assailants, and the third incident involved

four people beating him with hockey sticks, but later Islam testified that the first

incident involved 10 assailants, the second incident involved an unspecified

number of persons, and the third incident involved 10 or 12 assailants. And Islam

gave differing accounts about where the incidents occurred. Islam initially testified

that he moved to Dhaka after the first attack, but when questioned by the

immigration judge, Islam recanted his testimony and said that he moved to Dhaka

after the second attack. Islam offers no explanation for these and other

inconsistencies that would compel a reasonable fact finder to reverse the adverse

credibility finding and conclude that he established eligibility for asylum or for

withholding of removal. See id. at 1231.

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Islam does not qualify for relief under the Convention. Islam had to prove

that it is more likely than not that “he . . . would be tortured if removed to the

proposed country of removal,” Al Najjar, 257 F.3d at 1303 (quoting 8 C.F.R.

§ 208.16(c)(3)). Because Islam cannot satisfy the standard to obtain asylum or

withholding of removal, he necessarily fails to qualify under the more stringent

standard imposed for relief under the Convention. Forgue, 401 F.3d at 1288 n.4.

We DENY Islam’s petition for review.