12‐5090
Rahman v. Holder
BIA
Vomacka, IJ
A089 114 546
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 APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER 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
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 23rd day of June, two thousand fourteen.
4
5 PRESENT:
6 JON O. NEWMAN,
7 RICHARD C. WESLEY,
8 GERARD E. LYNCH,
9 Circuit Judges.
10 _____________________________________
11
12 MAKSUDUR RAHMAN,
13 Petitioner,
14
15 v. 12‐5090
16 NAC
17 ERIC H. HOLDER, JR., UNITED STATES
18 ATTORNEY GENERAL,
19 Respondent.
20 _____________________________________
21
22 FOR PETITIONER: Lawrence Spivak, Jamaica, NY.
23
24 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney General; Eric
1 W. Marsteller, Senior Litigation Counsel; Scott M.
2 Marconda, Trial Attorney, Office of Immigration
3 Litigation, United States Department of Justice,
4 Washington, D.C.
5 UPON DUE CONSIDERATION of this petition for review of a decision of
6 the Board of Immigration Appeals (“BIA”), it is hereby ORDERED, ADJUDGED,
7 AND DECREED that the petition for review is DENIED.
8 Maksudur Rahman, a native and citizen of Bangladesh, seeks review of a
9 November 29, 2012, decision of the BIA affirming an Immigration Judge’s (“IJ”)
10 December 8, 2011, denial of asylum, withholding of removal, and relief under the
11 Convention Against Torture (“CAT”). In re Maksudur Rahman, No. A089 114 546
12 (B.I.A. Nov. 29, 2012), aff’g No. A089 114 546 (Immig. Ct. N.Y. City Dec. 8, 2011).
13 We assume the parties’ familiarity with the underlying facts and procedural
14 history of this case.
15 Under the circumstances of this case, we have reviewed the IJ’s decision as
16 supplemented by the BIA, and minus the arguments not adopted by the BIA. See
17 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005); Yang v. U.S. Dep’t of Justice, 426
18 F.3d 520, 522 (2d Cir. 2005). Accordingly, we review the agency’s adverse
19 credibility determination, minus the finding regarding Rahman’s passport which
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1 the BIA did not affirm. We review the credibility determination under the
2 substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
3 Mukasey, 534 F.3d 162, 165‐66 (2d Cir. 2008).
4 For asylum applications, like Rahman’s, governed by the REAL ID Act, the
5 agency may, “[c]onsidering the totality of the circumstances,” base a credibility
6 finding on the inconsistencies in the applicant’s statements and other record
7 evidence without regard to whether they go “to the heart of the applicant’s
8 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163‐64. Substantial
9 evidence supports the agency’s adverse credibility determination.
10 In making its adverse credibility determination, the agency cited several
11 inconsistencies between Rahman’s written statement and his testimony. Major
12 inconsistencies regarding incidents in 2004, 2006, and 2008 are supported by the
13 record as Rahman gave different dates and descriptions of the alleged incidents.
14 Most notably, his application described 13 hours of torture occurring in 2006,
15 while he testified that this incident occurred in 2008, just before he fled to the
16 United States. Rahman has waived his challenge to the findings related to the
17 2004 incidents by failing to address them in his brief, and they stand as proper
18 bases for the IJ’s credibility determination. Li v. Mukasey, 529 F.3d 141, 146‐47 (2d
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2 Cir. 2008). His challenges to the 2006 and 2008 findings are addressed below.
3 His arguments do not undermine the adverse credibility determination.
4 Rahman argues that the IJ described the record inaccurately. The record
5 refutes all but one of his claims. Rahman faults the IJ for failing to question him
6 to clarify the testimony. However, the record shows that the IJ did question
7 Rahman about the events in Bangladesh. Rahman also states that the IJ
8 “misstated” his testimony, by finding that his father complained to police in 2006
9 about mistreatment, but the police would not accept the complaint. The finding
10 was consistent with Rahman’s statement that the police did not act on his father’s
11 complaint. Similarly, Rahman asserts that the IJ “misstated” that Rahman did
12 not report a 2006 incident to police because there was a case pending against him.
13 However, the transcript reveals that when Rahman was asked whether he went
14 to a police station with his father in 2006, Rahman replied: “No. I did not go
15 because there was a case against me.” Thus, the IJ did not “misstate” the
16 testimony in the record.
17 Rahman also argues that the IJ should have credited his testimony that he
18 was detained and tortured by police after a 2006 incident. However, Rahman
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1 testified that he was beaten in 2006, and ran away and sought medical attention.
2 He testified to torture only with respect to a 2008 detention. In addition, Rahman
3 claims that the IJ ignored evidence showing that the Jatiya Samajtantril Dal
4 (“JSD”), BNP, and Awami League (“AL”) were rival political parties. However,
5 the IJ did not question whether the BNP or AL were enemies of the JSD.
6 Rahman also faults the IJ for finding that he was charged criminally for
7 incidents occurring after he fled Bangladesh. The record shows that Rahman’s
8 application is ambiguous as to when the incidents occurred that resulted in the
9 criminal charges. Thus, the record does not support the IJ’s finding that he “was
10 charged with offenses that occurred after he had left Bangladesh.” Despite this
11 error, given the other inconsistencies cited by the IJ, as well as the lack of
12 corroboration and Rahman’s inability to provide compelling explanations for the
13 inconsistencies, this one erroneous finding does not require remand.
14 Given the multiple inconsistencies between Rahman’s testimony and
15 declaration supporting his application, the agency properly considered whether
16 there was sufficient corroborating evidence to rehabilitate his testimony. See Biao
17 Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). Rahman does not contest the
18 agency’s finding that he failed to produce medical records or other
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1 documentation. Instead, he argues that the agency should have credited his
2 explanation that his counsel failed to advise him of the need to produce
3 supporting evidence. Because medical records or supporting affidavits from
4 sympathetic party members or relatives were reasonably available evidence, the
5 IJ did not err in finding that the lack of corroboration further undermined
6 Rahman’s credibility. Id. at 273. And, as the IJ found, even if produced, those
7 documents would not have resolved the inconsistencies in the record.
8 Rahman also argues that the agency should have credited his alleged
9 memory loss as the reason for the inconsistencies. A “petitioner must do more
10 than offer a plausible explanation for his inconsistent statements to secure relief;
11 he must demonstrate that a reasonable fact‐finder would be compelled to credit his
12 testimony.” Majidi v. Gonzales, 430 F.3d 77, 80‐81 (2d Cir. 2005) (internal
13 quotation marks and citations omitted). The record reveals that Rahman
14 provided detailed testimony regarding many incidents in Bangladesh, but when
15 asked about specific information, he often responded: “I cannot remember” or “I
16 cannot recollect it right now exactly.” Toward the end of testimony, Rahman
17 stated that he had a “problem with [his] brain” and could not remember certain
18 dates. However, as the BIA ruled, absent any medical evidence or argument
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1 before the IJ that Rahman suffered from memory problems, it cannot be said that
2 the agency was “compelled” to credit Rahman’s single statement that he had a
3 “problem with [his] brain.” Id.
4 Considering the number of inconsistencies between Rahman’s testimony
5 and declaration, which calls into question whether the alleged persecution
6 actually occurred, and the lack of corroboration of any events, the agency’s
7 adverse credibility determination is supported by substantial evidence, and is
8 dispositive of Rahman’s claims for asylum, withholding of removal, and CAT
9 relief. See Xiu Xia Lin, 534 F.3d at 167; see also Paul v. Gonzales, 444 F.3d 148, 156
10 (2d Cir. 2006). We decline to reach Rahman’s challenge to the denial of change of
11 venue as he does not meaningfully raise it in his brief. Li, 529 F.3d at 146‐47.
12 For the foregoing reasons, the petition for review is DENIED.
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
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