11-1754-ag
Hussein v. Holder
BIA
Videla, IJ
A072 753 491
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 A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 16th day of February, two thousand twelve.
PRESENT:
ROBERT A. KATZMANN,
REENA RAGGI,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
MURTADA ABBAS HUSSEIN, AKA MURTADA
HUSSEIN,
Petitioner,
v. 11-1754-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Joshua Bardavid, New York,
N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Thomas B. Fatouros, Senior
Litigation Counsel; James A. Hurley,
Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is DENIED.
Petitioner Murtada Abbas Hussein, a native and citizen
of the Sudan, seeks review of an April 12, 2011 order of the
BIA, affirming a September 3, 2009 decision of Immigration
Judge (“IJ”) Gabriel C. Videla, which denied his application
for withholding of removal and relief under the Convention
Against Torture (“CAT”). In re Murtada Abbas Hussein, No.
A072 753 491 (B.I.A. Apr. 12, 2011), aff’g No. A072 753 491
(Immig. Ct. N.Y. City Sept. 3, 2009). We assume the
parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision including the portions not explicitly
discussed by the BIA. See Yun-Zui Guan v. Gonzales, 432
F.3d 391, 394 (2d Cir. 2005). The applicable standards of
review are well-established. See 8 U.S.C. § 1252(b)(4)(B);
Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
For applications like this one, governed by the REAL ID Act
of 2005, the agency may, considering the totality of the
circumstances, base a credibility finding on an applicant’s
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demeanor, the plausibility of his account, and
inconsistencies in his statements, without regard to whether
they go “to the heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii); Matter of J-Y-C-, 24 I. & N. Dec. 260,
265 (B.I.A. 2007). Analyzed under the REAL ID Act, the
agency’s adverse credibility determination is supported by
substantial evidence.
In finding Hussein not credible, the agency reasonably
relied on his unresponsive and evasive demeanor, which was
supported with specific citations to the record. See
8 U.S.C. § 1158(b)(1)(B)(iii). For example, in recounting
Hussein’s testimony concerning the omission of his prior
arrests from his application, the IJ specifically noted that
he “gave a series” of unresponsive answers, identifying
those responses. In addition, the IJ explicitly noted that
Hussein gave various non-responsive answers when questioned
about the omission of his full employment history from his
application and the Sudanese government’s awareness of his
activities in the United States. During the hearing, the IJ
repeatedly instructed Hussein regarding his unresponsive and
evasive demeanor and also noted that he was smiling when
asked about his arrest for sexual assault and resisting
arrest. While Hussein takes issue with the IJ’s demeanor
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finding for failing to discuss his “entire demeanor,”
because demeanor is “virtually always evaluated subjectively
and intuitively,” we defer to the IJ’s assessment. Tu Lin
v. Gonzales, 446 F.3d 395, 400 (2d Cir. 2006).
The agency also reasonably relied on omissions from
Hussein’s application and inconsistencies in his testimony
in making its adverse credibility determination. See
8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534
F.3d 162, 166 n.3 (2d Cir. 2008)(providing that, for
purposes of analyzing a credibility determination, “[a]n
inconsistency and an omission are . . . functionally
equivalent”). As the agency noted, Hussein failed to
disclose his prior arrests and ten year employment at a
women’s clothing store on his initial application. When
questioned about his failure to disclose his prior arrests,
although Hussein stated that “[n]obody translated this
application to me,” he previously had represented that every
word of the application had been translated to him. While
these omissions and inconsistencies do not go to the heart
of Hussein’s claim, they are nevertheless a proper basis for
the agency’s adverse credibility determination. See Xiu Xia
Lin, 534 F.3d at 167.
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Moreover, notwithstanding Hussein’s unsupported
assertion to the contrary, the mere fact that he amended his
withholding application – in the middle of his merits
hearing, after offering inconsistent testimony, and after
being specifically invited by the IJ to do so – does not
cure the inconsistencies in the record. See Kaur v.
Gonzales, 418 F.3d 1061, 1065 (9th Cir. 2005) (“It strains
credulity to hold that [we are compelled] to find Kaur
believable for the sole reason that she admitted to being a
liar.”). While Hussein also argues that he provided a
reasonable explanation for the inconsistencies and
omissions, namely, that he did not understand the written
questions, in light of his prior admission that his
application was fully read and translated to him, the agency
was not required to credit this explanation. See Majidi v.
Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
do more than offer a plausible explanation for his
inconsistent statements to secure relief; he must
demonstrate that a reasonable fact-finder would be compelled
to credit his testimony.”)(internal quotation marks
omitted). Given the demeanor finding and the
inconsistencies and omissions, the agency’s adverse
credibility determination is supported by substantial
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evidence, and provided a valid basis for the denial of both
withholding of removal and CAT relief, as the claims shared
the same factual predicate. See Xue Hong Yang v. U.S. Dep’t
of Justice, 426 F.3d 520, 523 (2d Cir. 2005).
Before this Court, Hussein also argues that the IJ
failed to consider photographs of his protest activities in
the U.S. and a membership letter from the Darfur People’s
Association. Because, as the government points out, Hussein
did not raise this issue before the BIA, it is unexhausted
and we decline to consider it. See Lin Zhong v. U.S. Dep’t
of Justice, 480 F.3d 104, 122-23 (2d Cir. 2007).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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