15-143
Yousuf v. Lynch
BIA
Segal, IJ
A201 293 608
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
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 4th day of October, two thousand sixteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 DENNY CHIN,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 MOHAMMED YOUSUF,
14 Petitioner,
15
16 v. 15-143
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Salim Sheikh, New York, New
24 York.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal
27 Deputy Assistant Attorney
28 General; Douglas E. Ginsburg,
29 Assistant Director; Deitz P.
30 Lefort, Trial Attorney, Office
31 of Immigration Litigation,
32 United States Department of
33 Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Mohammed Yousuf, a native and citizen of
6 Bangladesh, seeks review of a December 16, 2014, decision of
7 the BIA, affirming a February 6, 2013, decision of an
8 Immigration Judge (“IJ”) denying Yousuf’s application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Mohammed Yousuf,
11 No. A201 293 608 (B.I.A. Dec. 16, 2014), aff’g No. A201 293
12 608 (Immig. Ct. N.Y. City Feb. 6, 2013). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 both the BIA’s and IJ’s decisions “for the sake of
17 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448
18 F.3d 524, 528 (2d Cir. 2006). The applicable standards of
19 review are well established. 8 U.S.C. § 1252(b)(4)(B); Xiu
20 Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
21 The agency may, “[c]onsidering the totality of the
22 circumstances,” base a credibility finding on an asylum
2
1 applicant’s “demeanor, candor, or responsiveness” and
2 inconsistencies in his statements and other record evidence
3 “without regard to whether” those inconsistencies go “to the
4 heart of the applicant’s claim.” 8 U.S.C.
5 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. “We
6 defer . . . to an IJ’s credibility determination unless . .
7 . it is plain that no reasonable fact-finder could make such
8 an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at
9 167. Further, “[a] petitioner must do more than offer a
10 plausible explanation for his inconsistent statements to
11 secure relief; he must demonstrate that a reasonable fact-
12 finder would be compelled to credit his testimony.” Majidi
13 v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (internal
14 quotation marks and citations omitted). Substantial
15 evidence supports the agency’s determination that Yousuf was
16 not credible.
17 First, the adverse credibility determination is
18 supported by internal inconsistencies in Yousuf’s testimony
19 and inconsistencies between his testimony and the
20 documentary record. The IJ was entitled to rely on Yousuf’s
21 internally inconsistent testimony regarding when the Awami
22 League attempted to rape his wife (March or September 2011),
3
1 which was also inconsistent with his written application and
2 the documentary evidence that he provided. Yousuf was
3 repeatedly asked to clarify, but his responses added only
4 further inconsistency. See Majidi, 430 F.3d at 80.
5 Further, the IJ reasonably relied on inconsistencies
6 between Yousuf’s testimony and his credible fear interview.
7 Contrary to the Government’s position, Yousuf sufficiently
8 exhausted his challenge to the IJ’s reliance on the
9 interview. See Gill v. INS, 420 F.3d 82, 84 (2d Cir. 2005).
10 Nonetheless, Yousuf’s challenge has no merit. The agency
11 assessed the reliability of the interview and reasonably
12 relied on the interview, which “displays the hallmarks of
13 reliability.” Ming Zhang v. Holder, 585 F.3d 715, 725 (2d
14 Cir. 2009). A Bengali interpreter was used, Yousuf was
15 advised of his rights and elected to proceed without an
16 attorney, the officer asked questions about Yousuf’s past
17 harm and future fear (which were memorialized in a
18 typewritten document), and at no point during the interview
19 did Yousuf seem to have difficulty answering the
20 interviewer’s questions, providing specific details of his
21 alleged past harm in Bangladesh.
4
1 And the inconsistency between Yousuf’s testimony and
2 the interview are apparent in the record. Yousuf testified
3 that the Awami League beat him on three occasions: July
4 2009, January 2010, and December 2010. However, during his
5 interview Yousuf stated that he was beaten only twice:
6 January 2010 and December 2010. Yousuf did not offer a
7 compelling explanation for this inconsistency. See Majidi,
8 430 F.3d at 80.
9 The IJ’s adverse credibility determination is further
10 bolstered by Yousuf’s lack of responsiveness during the
11 hearing. 8 U.S.C. § 1158(b)(1)(B)(iii). When questioned
12 about how many individuals were involved in the attacks, he
13 repeatedly responded with information about dates of the
14 attacks. He had to be asked two or three times before
15 providing a responsive answer.
16 Given the inconsistency findings and lack of
17 responsiveness, the agency reasonably found Yousuf not
18 credible. See Xiu Xia Lin, 534 F.3d at 165-66; Xian Tuan Ye
19 v. Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006)
20 (holding that an “inconsistency afforded substantial
21 evidence to support the adverse credibility finding” where
5
1 it related to “an example of the very persecution from which
2 [the applicant] sought asylum” (internal quotation marks
3 omitted)). That finding is dispositive of asylum,
4 withholding of removal, and CAT relief because all three
5 claims are based on the same factual predicate. See Paul v.
6 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
7 We decline to reach Yousuf’s conclusory argument that
8 the agency ignored material evidence. He did not raise this
9 argument on appeal to the BIA, so it is unexhausted and not
10 subject to judicial review. See Lin Zhong v. U.S. Dep’t of
11 Justice, 480 F.3d 104, 122 (2d Cir. 2007) (providing that
12 judicially imposed issue exhaustion is mandatory).
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, any stay of
15 removal that the Court previously granted in this petition
16 is VACATED, and any pending motion for a stay of removal in
17 this petition is DISMISSED as moot. Any pending request for
18 oral argument in this petition is DENIED in accordance with
19 Federal Rule of Appellate Procedure 34(a)(2), and Second
20 Circuit Local Rule 34.1(b).
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
23
24
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