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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-17535
Non-Argument Calendar
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Agency No. A206-675-747
ZAKIR HOSSAIN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(October 18, 2017)
Before JORDAN, ROSENBAUM and BLACK, Circuit Judges.
PER CURIAM:
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Zakir Hossain, a citizen of Bangladesh, petitions for review of the Board of
Immigration Appeals’ (BIA) final order affirming the Immigration Judge’s (IJ)
denial of his application for asylum, withholding of removal, and relief under the
United Nations Convention Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment (CAT). Hossain, a member of the
Bangladesh National Party (BNP), claims he was persecuted based on his political
views by members of the Awami League. Hossain asserts substantial evidence
does not support the denial of asylum and withholding of removal based on an
adverse credibility determination. Hossain also contends substantial evidence does
not support the denial of CAT relief. After review, 1 we deny the petition.
I. DISCUSSION
A. Asylum and Withholding of Removal
An applicant for asylum must meet the Immigration and Nationality Act’s
(INA) definition of a refugee. 8 U.S.C. § 1158(b)(1). The INA defines a refugee
as:
1
We review only the decision of the BIA, “except to the extent that it expressly adopts
the IJ’s opinion.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). We also review
the IJ’s decision insofar as the BIA adopts the IJ’s reasoning. Id. Factual determinations, which
include credibility determinations, are reviewed under the substantial evidence test. Ruiz v. U.S.
Att’y Gen., 440 F.3d 1247, 1254-55 (11th Cir. 2006). Under the substantial evidence test, which
is highly deferential, we “must affirm the BIA's decision if it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Al Najjar, 257 F.3d at
1284 (quotation omitted).
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any person who is outside any country of such person’s nationality . . .
and who is unable or unwilling to return to, and is unable or unwilling
to avail himself or herself of the protection of, that country because of
persecution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or
political opinion.
8 U.S.C. § 1101(a)(42)(A). To meet the definition of a refugee, the applicant must,
“with specific and credible evidence, demonstrate (1) past persecution on account
of a statutorily listed factor, or (2) a well-founded fear that the statutorily listed
factor will cause future persecution.” Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257
(11th Cir. 2006) (quotation omitted).
If credible, an asylum applicant’s testimony alone may be sufficient for the
applicant to establish his eligibility for relief from removal. Id. On the other hand,
“an adverse credibility determination alone may be sufficient to support the denial
of an asylum application,” but only if the alien fails to produce evidence
independent of his testimony. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287
(11th Cir. 2005).
An IJ may base a credibility finding on the totality of the circumstances,
including: (1) the demeanor, candor, or responsiveness of the applicant; (2) the
inherent plausibility of the applicant’s account; (3) the consistency between the
applicant’s written and oral statements; (4) the internal consistency of each
statement; and (5) the consistency of the statements with other record evidence,
including State Department reports. 8 U.S.C. § 1158(b)(1)(B)(iii). An adverse
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credibility determination may be based on inaccuracies, inconsistences, and
falsehoods, whether or not they relate to the “heart” of the applicant’s claim. Id.
Substantial evidence supports the denial of Hossain’s asylum and
withholding of removal claims based on an adverse credibility finding. First, the IJ
and BIA’s reasons for the adverse credibility determination are specific and
cogent. See Forgue, 401 F.3d at 1287 (explaining an IJ’s adverse credibility
determination must be based on “specific, cogent reasons”). Contrary to Hossain’s
argument, the three inconsistencies on which the IJ and BIA focused are not
“minor” or “incidental.” The first inconsistency, regarding whether Hossain was
“threatened” or “harmed,” goes to the heart of Hossain’s asylum claim—the
question of whether he actually endured past persecution based on his political
views. The second inconsistency, regarding Hossain’s parents’ description of an
injury to Hossain’s thumb, also relates strongly to the heart of Hossain’s claim, as
it concerns a physical injury suffered during Hossain’s alleged persecution.
Though the third inconsistency, regarding the amount paid to smugglers, does not
go to the heart of Hossain’s claim, it nevertheless supports an adverse credibility
determination. See 8 U.S.C. § 1158(b)(1)(B)(iii).
Second, the record as a whole supports the finding Hossain is not credible.
Not only was Hossain inconsistent about whether he was harmed, inconsistent—
through his parents’ affidavit—about where he was injured, and inconsistent about
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whether he knew or remembered the smuggling fee, his shifting and implausible
explanations for these inconsistencies before the IJ further undercut his credibility.
Even if one of Hossain’s shifting explanations was plausible standing alone,
together, the explanations create additional inconsistencies that diminish Hossain’s
credibility.
Hossain offers new explanations for the inconsistencies on appeal, but even
if they are tenable, they do not compel a finding Hossain is credible because the
record contains other inconsistences. See Chen v. U.S. Att’y Gen., 463 F.3d 1228,
1233 (11th Cir. 2006) (providing an applicant’s tenable explanation for an
inconsistency or implausibility will not necessarily warrant reversal, particularly
where corroborating evidence is lacking). For instance, Hossain’s initial statement
said he left Bangladesh a year before entering the United States (in May of 2013),
and it provided a detailed account of his travels in South and Central America over
a period of 11 or 12 months. However, Hossain later stated he was attacked in
May and September of 2013 and left Bangladesh in October of 2013, rendering his
travel timeline impossible. Additionally, Hossain initially told the border officer
he had not spoken to his uncle in seven or eight years and his uncle was not
expecting him, but later testified his plan all along was to meet his uncle in the
United States, and his uncle had “actually sponsored” him.
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Independent of his testimony, the other evidence Hossain submitted does not
compel a finding he is eligible for relief because it fails to show any nexus between
Hossain’s political opinion and his alleged persecution. The only piece of
corroborating evidence Hossain offered indicating he was attacked by Awami
League members was his parents’ affidavit, and it is inconsistent with his own
account in several respects. While the records from the pharmacy and the hospital
both describe a generic “physical assault,” they do not indicate Hossain was
attacked by anyone affiliated with the Awami League or the assaults were
otherwise politically motivated.
Because substantial evidence and specific, cogent reasons support the
adverse credibility determination, and because substantial evidence supports the
denial of Hossain’s claims in light of this determination, we deny Hossain’s
petition as to his asylum and withholding of removal claims. See Sepulveda v. U.S.
Att’y Gen., 401 F.3d 1226, 1232-33 (11th Cir. 2005) (explaining an applicant who
is unable to meet the well-founded fear standard for asylum is generally also
precluded from qualifying for withholding of removal).
B. CAT Relief
An applicant seeking CAT relief must establish “it is more likely than not
that he or she would be tortured if removed to the proposed country of removal.” 8
C.F.R. § 1208.16(c)(2).
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The CAT defines torture as:
any act by which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person for such purposes as obtaining
from him or her or a third person information or a confession,
punishing him or her for an act he or she or a third person has
committed or is suspected of having committed, or intimidating or
coercing him or her or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by
or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.
8 C.F.R. § 208.18(a)(1). “Acquiescence” requires that a public official have
awareness of the torture before it occurs and “thereafter breach his or her legal
responsibility to intervene to prevent [it].” Id. § 208.18(a)(7). Evidence relevant
to an applicant’s eligibility for CAT relief includes, but is not limited to:
(1) incidents of past torture inflicted upon the applicant; (2) the viability of
relocation within the country of removal as a means to avoid torture; (3) gross,
flagrant or mass human rights violations in the country of removal; and (4) other
relevant country conditions. Id. § 208.16(c)(3)(i)-(iv).
Substantial evidence supports the denial of Hossain’s claim for CAT relief
because the record does not compel the conclusion that Hossain will “more likely
than not” be tortured upon his return to Bangladesh. First, although there is
evidence that Bangladeshi police and security forces engage in torture, the record
does not indicate that Hossain was ever contacted by Bangladeshi police or
security forces in the past, or that such forces would have any interest in Hossain—
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a ward-level cashier for the BNP—upon his return to Bangladesh. Though 10
torture-related deaths occurred at the hands of security forces during the first nine
months of 2013, the population of Bangladesh exceeds 150 million, further
diminishing this likelihood that Hossain will more likely than not be tortured in
Bangladesh. Second, Hossain was not found credible, but even accepting Hossain
was attacked by Awami League supporters in the past, there is no evidence these
attacks occurred with the consent or acquiescence of public officials, and the fact
torture has been criminalized in Bangladesh supports a finding that public officials
did not acquiesce. 8 C.F.R. § 208.18(a)(7). Finally, there is no indication that
Hossain could not relocate within Bangladesh to mitigate any risk of suffering
torture, as he was able to move to another village to avoid persecution in
September of 2013 and was previously able to finance international travel, and
freedom of movement is generally possible within Bangladesh.
II. CONCLUSION
Accordingly, we deny Hossain’s petition for review.2
PETITION DENIED.
2
Because the BIA did not reach the issue, we do not consider Hossain’s arguments
regarding the terrorism bar on appeal. See Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th
Cir. 2016) (stating we do not consider issues that were not reached by the BIA).
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