NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 7 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MD J ISLAM, No. 16-72939
Petitioner, Agency No. A206-915-545
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 5, 2019**
Seattle, Washington
Before: GOULD and NGUYEN, Circuit Judges, and R. COLLINS,*** District
Judge.
Md. Johirul Islam, a native and citizen of Bangladesh, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
Immigration Judge’s (“IJ”) denial of asylum and withholding of removal.1 Islam
testified that he fears persecution from the Awami League for his involvement with
the Bangladesh National Party. Islam also argues that the IJ violated his due
process rights by failing to give him adequate notice of his right to obtain counsel
and an opportunity to do so. We have jurisdiction under 8 U.S.C. § 1252, and we
deny Islam’s petition for review.
1. Substantial evidence supported the IJ’s adverse credibility finding. Kin v.
Holder, 595 F.3d 1050, 1054 (9th Cir. 2010) (“We review an adverse credibility
finding for substantial evidence.”). The IJ and BIA identified at least five
inconsistencies between Islam’s in-court testimony, the credible fear interview, the
Record of Sworn Statement, and other record evidence. For example, Islam was
inconsistent about the year he first encountered the Awami League, and the IJ did
not find his explanation about the inconsistency to be adequate. Islam also claimed
during his interview and in his asylum application that he was physically attacked
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The IJ also denied Islam’s application for protection under the Convention
Against Torture (“CAT”). However, the BIA deemed the issue waived because
Islam had “not meaningfully appeal[ed] the denial of his application for protection
under the [CAT]” to the BIA. To the extent Islam now raises the CAT issue, we
lack jurisdiction to review it because Islam failed to exhaust his administrative
remedies. See Vargas v. U.S. Dep’t of Immigration & Naturalization, 831 F.2d
906, 907–08 (9th Cir. 1987) (“Failure to raise an issue in an appeal to the BIA
constitutes a failure to exhaust remedies with respect to that question and deprives
this court of jurisdiction to hear the matter.”).
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in May 2013, December 2013, and January 2014. But he testified at the hearing
that during the December 2013 incident, he was not beaten; rather, he was
threatened and allowed to walk away.
2. The BIA did not err in concluding that the IJ had given Islam adequate
notice of his right to obtain counsel and an opportunity to do so. “The BIA’s
decision will be reversed on due process grounds if (1) the proceeding was ‘so
fundamentally unfair that the alien was prevented from reasonably presenting his
case,’ and (2) the alien demonstrates prejudice, ‘which means that the outcome of
the proceeding may have been affected by the alleged violation.’” Ibarra-Flores v.
Gonzales, 439 F.3d 614, 620–21 (9th Cir. 2006) (quoting Colmenar v. INS, 210
F.3d 967, 971 (9th Cir. 2000)).
The IJ continued Islam’s removal proceeding for two weeks to give Islam an
opportunity to search for counsel. When Islam returned to court without
representation, he stated that he would “proceed [him]self.” The IJ nonetheless
advised at a subsequent hearing that Islam could retain counsel at any time before
the merits hearing. Islam was thus given a period of approximately six months to
retain counsel—between his initial court appearance on December 23, 2014 and
the merits hearing on June 25, 2015. In sum, Islam fails to establish that the
proceedings were so fundamentally unfair that he was prevented from reasonably
presenting his case or that he suffered prejudice.
3
PETITION FOR REVIEW DENIED.
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