11-3672-ag
Mushtaq v. Holder
BIA
Mulligan, IJ
A088 345 231
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
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IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 29th day of October, two thousand thirteen.
PRESENT:
REENA RAGGI,
DEBRA ANN LIVINGSTON,
CHRISTOPHER F. DRONEY,
Circuit Judges.
KHURRAM MUSHTAQ,
Petitioner,
v. 11-3672
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
FOR PETITIONER: Khagendra Gharti-Chhetry, Esq.,
New York, New York.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Paul Fiorino,
Senior Litigation Counsel, Judith R.
O’Sullivan, Trial Attorney, Office
of Immigration Litigation, Civil
Division, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DENIED.
Khurram Mushtaq, a native and citizen of Pakistan, seeks
review of an August 25, 2011, order of the BIA, affirming the
June 8, 2009, decision of Immigration Judge (“IJ”) Thomas
Mulligan, which denied his application for asylum, withholding
of removal, and relief under the Convention Against Torture
(“CAT”). In re Khurram Mushtaq, No. A088 345 231 (B.I.A. Aug.
25, 2011), aff’g No. A088 345 231 (Immig. Ct. N.Y.C. June 8,
2009). We assume the parties’ familiarity with the underlying
facts and procedural history in this case.
Under the circumstances of this case, we review both the
BIA’s and IJ’s opinions. See Yun-Zui Guan v. Gonzales, 432
F.3d 391, 394 (2d Cir. 2005). The applicable standards of
review are well established. See 8 U.S.C. § 1252(b)(4)(B);
Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
For asylum applications governed by the REAL ID Act, such
as this one, the agency may, considering the totality of the
circumstances, base a credibility finding on an asylum
applicant’s demeanor, the plausibility of his account, and
inconsistencies in his statements, without regard to whether
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they go “to the heart of the applicant’s claim.” 8 U.S.C. §
1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey, 534 F.3d 162,
167 (2d Cir. 2008) (“[A]n IJ may rely on any inconsistency or
omission in making an adverse credibility determination as
long as the ‘totality of the circumstances’ establishes that
an asylum applicant is not credible.”). Here, the agency did
not err in denying relief, as there was substantial evidence
to support the agency’s adverse credibility finding.
The agency reasonably relied in part on Mushtaq’s
demeanor, finding that on numerous occasions Mushtaq paused
prior to responding to questions, conveying the impression
that his testimony had been scripted. See Majidi v. Gonzales,
430 F.3d 77, 81 n.1 (2d Cir. 2005). Mushtaq’s credibility was
also undermined by the fact that neither his original and
amended asylum application nor his father’s affidavit
mentioned that Pakistani authorities came to Mushtaq’s
family’s home on multiple occasions to search for him, as
Mushtaq later testified. See Xiu Xia Lin, 534 F.3d at 166
n.3. A reasonable fact finder would not be compelled to
credit Mushtaq’s explanation for this omission. See Majidi,
430 F.3d at 80-81.
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The agency’s adverse credibility determination was
further supported by Mushtaq’s failure to provide detailed
testimony. “Where an applicant gives very spare
testimony . . . the IJ . . . may fairly wonder whether the
testimony is fabricated.” Jin Shui Qiu v. Ashcroft, 329 F.3d
140, 152 (2d Cir. 2003), overruled in part on other grounds by
Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir.
2007) (en banc). As the agency found, Mushtaq, when
questioned, was unable to describe the content of his
political speeches. Although “a finding of testimonial
vagueness cannot, without more, support an adverse credibility
determination unless government counsel or the IJ first
attempts to solicit more detail from the alien,” Shunfu Li v.
Mukasey, 529 F.3d 141, 147 (2d Cir. 2008), here, the IJ probed
Mushtaq for additional details and, as noted above, did not
rely solely on vagueness to support the adverse credibility
determination.
Having already reasonably called Mushtaq’s credibility
into question, the agency permissibly relied on Mushtaq’s
failure to present evidence to corroborate the length of his
hospital stay, his marriage and application for asylum while
living in Argentina, and the publication of his two newspaper
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articles criticizing Pakistan’s military regime and advocating
for democratic reform. See Biao Yang v. Gonzales, 496 F.3d
268, 273 (2d Cir. 2007) (holding that agency may rely on lack
of corroborative evidence where applicant’s testimony is not
otherwise credible). Although the IJ erred in finding that
Mushtaq failed to testify that x-rays were taken of his right
shoulder during his alleged one-week hospital stay, remand
would be futile because there is little doubt that the agency
would still find Mushtaq not credible even absent this factual
error. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391,
401 (2d Cir. 2005).
In sum, given the demeanor finding, the omissions, and
the lack of detail and corroboration, the agency’s adverse
credibility determination is supported by substantial
evidence. See Xiu Xia Lin, 534 F.3d at 165-66. The adverse
credibility determination is dispositive of Mushtaq’s claims
for asylum, withholding of removal, and CAT relief, as those
claims were all based on the same factual predicate. See Paul
v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
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is VACATED, and any pending motion for a stay of removal in
this petition is DENIED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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