NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 12 2010
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
MAMUN BIN AZAM, Nos. 07-70431
07-71546
Petitioner,
Agency No. A071-502-600
v.
ERIC H. HOLDER Jr., Attorney General, MEMORANDUM *
Respondent.
On Petitions for Review of Orders of the
Board of Immigration Appeals
Submitted April 5, 2010 **
Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.
In these consolidated petitions for review, Mamun Bin Azam, a native and
citizen of Bangladesh, petitions for review of the Board of Immigration Appeals’
(“BIA”) orders dismissing his appeal from an immigration judge’s (“IJ”) decision
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
denying his applications for asylum, withholding of removal, and protection under
the Convention Against Torture (“CAT”), and denying his motion to reopen based
on ineffective assistance of counsel. We have jurisdiction pursuant to 8 U.S.C.
§ 1252. We review for substantial evidence an adverse credibility determination.
Gui v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002). We review for abuse of
discretion the denial of a motion to reopen and review de novo questions of law,
including claims of ineffective assistance of counsel. Mohammed v. Gonzales, 400
F.3d 785, 791-92 (9th Cir. 2005). We deny the petition for review in No. 07-
70431, and we grant the petition for review in No. 07-71546.
Substantial evidence supports the IJ’s adverse credibility determination
based on the discrepancies between Azam’s documentary evidence and his
testimony regarding his membership activities, on whose behalf he campaigned,
and when he was attacked. See Kohli v. Gonzales, 473 F.3d 1061, 1071 (9th Cir.
2007) (discrepancies between petitioner’s testimony, declaration and letter of
membership substantially support adverse credibility finding). Because at least
one of the identified grounds underlying the IJ’s adverse credibility finding is
supported by substantial evidence and goes to the heart of the claim of persecution,
we are bound to accept the negative credibility finding. See Li v. Ashcroft, 378
F.3d 959, 964 (9th Cir. 2004). In the absence of credible testimony, Azam’s
2 07-70431
asylum and withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d
1153, 1156 (9th Cir. 2003).
Because Azam’s CAT claim is based on the same testimony the IJ found not
credible, and he points to no other evidence the IJ should have considered,
substantial evidence supports the IJ’s denial of protection under CAT. See id. at
1156-57.
Azam supported his motion to reopen with an affidavit in which he averred
that his former counsel never discussed cancellation of removal with him, or filed
an application on his behalf despite the IJ’s repeated admonition that Azam
appeared to be eligible for that form of relief. See Castillo-Perez v. INS, 212 F.3d
518, 526 (9th Cir. 2000) (counsel’s failure to file an application for relief results in
ineffective assistance of counsel). The BIA abused its discretion in denying
Azam’s motion to reopen, where it failed to accept the facts in his affidavit as true
and it engaged in speculation as to counsel’s motives for not filing the application.
Bhasin v. Gonzales, 423 F.3d 977, 987 (9th Cir. 2005) (facts presented in affidavits
must be accepted as true unless inherently unbelievable).
No. 07-70431: PETITION FOR REVIEW DENIED.
No. 07-71546: PETITION FOR REVIEW GRANTED.
3 07-70431