14-763
Uddin v. Lynch
BIA
Poczter, IJ
A201 293 609
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 TO 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
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 2nd day of September, two thousand fifteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 DEBRA ANN LIVINGSTON,
10 SUSAN L. CARNEY,
11 Circuit Judges.
12 _____________________________________
13
14 JOSIM UDDIN,
15 Petitioner,
16
17 v. 14-763
18 NAC
19
20 LORETTA E. LYNCH, UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: Thomas V. Massucci, New York,
26 New York.
27
28 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
29 Attorney General; Leslie McKay,
1 Assistant Director; Anthony J.
2 Messuri, Trial Attorney, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington, D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review is
10 DENIED.
11 Petitioner Josim Uddin, a native and citizen of Bangladesh,
12 seeks review of a February 14, 2014 decision of the BIA affirming
13 a June 21, 2012 decision of an Immigration Judge (“IJ”) denying
14 Uddin’s application for asylum, withholding of removal, and
15 relief under the Convention Against Torture (“CAT”). In re
16 Josim Uddin, No. A201 293 609 (B.I.A. Feb. 14, 2014), aff’g No.
17 A201 293 609 (Immig. Ct. N.Y.C. June 21, 2012). We assume the
18 parties’ familiarity with the underlying facts and procedural
19 history in this case.
20 Under the circumstances of this case, we have reviewed the
21 IJ’s decision as the final agency determination. See Shunfu
22 Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008). The applicable
23 standards of review are well established. See 8 U.S.C.
24 § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d 510,
25 513 (2d Cir. 2009).
2
1 For asylum applications such as Uddin’s, governed by the
2 REAL ID Act of 2005, the agency may, considering the totality
3 of the circumstances, base a credibility finding on an asylum
4 applicant’s “demeanor, candor, or responsiveness,” the
5 plausibility of his account, and inconsistencies in his
6 statements, so long as they reasonably support an inference that
7 the applicant is not credible. 8 U.S.C. § 1158(b)(1)(B)(iii);
8 see Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).
9 We defer “to an IJ’s credibility determination unless, from the
10 totality of the circumstances, it is plain that no reasonable
11 fact-finder could make such an adverse credibility ruling.”
12 Xiu Xia Lin, 534 F.3d at 167. In this case, the IJ reasonably
13 based her adverse credibility determination on Uddin’s
14 demeanor, and on inconsistencies in his testimony and evidence.
15 “[D]emeanor is paradigmatically the sort of evidence that
16 a fact-finder is best positioned to evaluate.” Li Zu Guan v.
17 INS, 453 F.3d 129, 140 (2d Cir. 2006). Accordingly, we grant
18 “particular deference” in applying the substantial evidence
19 standard to credibility findings based on demeanor. Shu Wen
20 Sun v. BIA, 510 F.3d 377, 381 (2d Cir. 2007) (internal quotation
21 marks omitted). The IJ found that when Uddin realized an answer
22 “was not satisfactory, he would ask for repetition of the
3
1 question, and then state that he did not understand,” leading
2 to the impression that he did not know what his documents said
3 or what his claim was about, instead relying on the cues of those
4 around him to give the “right” answers. In re Josim Uddin, A201
5 293 609, at 14 (Immig. Ct. N.Y.C. June 21, 2012).
6 The IJ’s demeanor finding was further supported by specific
7 examples of inconsistencies in the record. See Li Hua Lin v.
8 U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006). Uddin
9 claimed that, as an active member of the Bangladesh National
10 Party (“BNP”), he was attacked on three occasions by an
11 opposition political party, and arrested and tortured in 2009
12 during a demonstration. Uddin was inconsistent regarding
13 several aspects of his claim, including: the location of the
14 hospital he went to after a 2010 attack; whether he retained
15 a lawyer after he was arrested in 2009 and that lawyer’s name;
16 and under what section of Bangladesh law he was arrested. Uddin
17 argues that the IJ erred because she did not put him on notice
18 that she thought his testimony was problematic. However, “the
19 relevant inconsistenc[ies] w[ere] plainly self-evident so that
20 identification . . . was not needed to make [Uddin] cognizant
21 of the defect.” Ming Shi Xue v. BIA, 439 F.3d 111, 125 (2d Cir.
4
1 2006); see also Majidi v. Gonzales, 430 F.3d 77, 81 (2d Cir.
2 2005).
3 The IJ also based her adverse credibility determination on
4 Uddin’s lack of knowledge about politics and government in
5 Bangladesh. Although he portrayed himself as actively
6 involved in a political campaign in 2008, he testified that that
7 there were 64 open seats in Parliament in 2008; his party, the
8 BNP, won 25 of those seats; and the Awami League won about 40
9 seats. However, the U.S. State Department’s 2010 Human Rights
10 Report on Bangladesh (the “Report”) stated that there were 300
11 open seats and the Awami League won 230. (The Report does not
12 state how many seats the BNP won.)
13 Uddin does not dispute that his testimony regarding the
14 makeup of Bangladesh’s parliament was inaccurate but argues
15 that the IJ mischaracterized the level of his political
16 involvement and thus had an unrealistic expectation regarding
17 his political knowledge. Uddin now contends that he was a
18 “lower-level” “foot soldier” for the BNP, active in a remote,
19 rural area of the country. Pet’r’s Br. at 17-18. However, in
20 his asylum application, Uddin wrote that he became a member of
21 the local BNP affiliate in 2005, and was promoted to Publicity
22 Secretary in 2008. As Publicity Secretary, he publicized
5
1 meetings, distributed leaflets, convinced young people to join,
2 and campaigned in support of party candidates in local and
3 national elections. He testified that he publicized and
4 distributed party pamphlets and papers. There are “instances
5 in which the nature of an individual applicant’s account would
6 render his lack of a certain degree of doctrinal knowledge
7 suspect and could therefore provide substantial evidence in
8 support of an adverse credibility finding.” Rizal v. Gonzales,
9 442 F.3d 84, 90 (2d Cir. 2006). This was one such instance.
10 The IJ reasonably relied on Uddin’s portrayal of himself as an
11 active member of the BNP to conclude that his lack of knowledge
12 about Bangladesh government impugned his credibility.
13 Because the REAL ID Act permits the agency to base a
14 credibility finding on inconsistencies in an applicant’s
15 statements regardless of whether they go to the heart of his
16 claim, a totality of the circumstances supports the agency’s
17 adverse credibility determination. 8 U.S.C.
18 § 1158(b)(1)(B)(iii); see Xiu Xia Lin, 534 F.3d at 167.
19 Because the only evidence of a threat to Uddin’s life or freedom
20 depended upon his credibility, the agency’s finding that he was
21 not credible necessarily precludes success on his claims for
6
1 asylum, withholding of removal, and CAT relief. See Paul v.
2 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of removal
5 that the Court previously granted in this petition is VACATED,
6 and any pending motion for a stay of removal in this petition
7 is DISMISSED as moot. Any pending request for oral argument
8 in this petition is DENIED in accordance with Federal Rule of
9 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
10 34.1(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
7