18-3618
Uddin v. Garland
BIA
Cassin, IJ
A206 765 163
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 11th day of March, two thousand twenty-two.
PRESENT:
JON O. NEWMAN,
ROSEMARY S. POOLER,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
MAHI UDDIN,
Petitioner,
v. 18-3618
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Raymond Lo, Esq., Jersey City,
NJ.
FOR RESPONDENT: Joseph H. Hunt, Assistant
Attorney General; Russell J.E.
Verby, Senior Litigation Counsel;
John D. Williams, Trial Attorney,
Office of Immigration Litigation,
United States Department of
Justice, Washington, DC.
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED,
AND DECREED that this petition for review of a decision of
the Board of Immigration Appeals (“BIA”) is DENIED.
Petitioner Mahi Uddin, a native and citizen of
Bangladesh, seeks review of a November 15, 2018, decision of
the BIA affirming an October 12, 2017, decision of an
Immigration Judge (“IJ”) denying his application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Mahi Uddin, No. A206 765 163
(B.I.A. Nov. 15, 2018), aff’g No. A206 765 163 (Immig. Ct.
N.Y. City Oct. 12, 2017). We assume the parties’ familiarity
with the underlying facts and procedural history.
Under the circumstances of this case, we have reviewed
both the IJ’s and BIA’s decisions “for the sake of
completeness.” Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir.
2006). The applicable standards of review are well
established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.
Sessions, 891 F.3d 67, 76 (2d Cir. 2018).
“Considering the totality of the circumstances, and all
relevant factors, a trier of fact may base a credibility
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determination on the demeanor, candor, or responsiveness of
the applicant or witness, . . . the consistency between the
applicant’s or witness’s written and oral statements . . . ,
[and] the internal consistency of each such statement . . .
without regard to whether an inconsistency, inaccuracy, or
falsehood goes to the heart of the applicant’s claim, or any
other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We
defer . . . to an IJ’s credibility determination unless, from
the totality of the circumstances, it is plain that no
reasonable fact-finder could make such an adverse credibility
ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
2008); accord Hong Fei Gao, 891 F.3d at 76.
Here, substantial evidence supports the agency’s
determination that Uddin was not credible as to his claim
that members of the Bangladesh Awami League (“BAL”)
threatened him in March 2013 and invaded his house in April
and June 2013 because of his membership in the rival
Bangladesh Nationalist Party (“BNP”). Uddin’s inconsistent
testimony as to (1) whether he was a BNO member or merely a
supporter; (2) how many encounters he had with BAL members;
and (3) whether he reported any encounters to the police
support the agency’s determination. For example, at his
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credible fear interview, Uddin stated that he “belong[ed]
with BNP” and “worked for the party,” but denied being a
“formal member.” But he testified that he was a formal member
of BNP and submitted a letter from BNP leaders as proof of
his membership. During that same interview, he described
two encounters with BAL members and stated that he did not
report those encounters to the police; but he added a third
encounter in his application and testimony and stated that he
reported one encounter to the police. The IJ was not required
to accept his explanations that he may have made errors or
had difficulty remembering. 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)).
Moreover, the agency reasonably relied on Uddin’s
omission from his asylum application of an attack on his wife
and son after he left Bangladesh. Uddin testified that, while
attempting to kidnap his son, BAL members held a gun to his
wife and broke his son’s arm. He was inconsistent about the
month of this event, but he confirmed and his wife’s letter
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reflected that the incident predated the filing of his asylum
application, and he had no explanation for the omission. See
Majidi, 430 F.3d at 80; see also Hong Fei Gao, 891 F.3d at
78-79 (weight given to an omission depends, in part, on
whether “facts are ones that a credible petitioner would
reasonably have been expected to disclose under the relevant
circumstances”).
Given these inconsistencies, omission, and the deference
due to the IJ’s demeanor finding, substantial evidence
supports the adverse credibility determination. See Xiu Xia
Lin, 534 F.3d at 167 (agency may rely on cumulative effect of
inconsistencies and omissions); Jin Chen v. U.S. Dep’t of
Justice, 426 F.3d 104, 113 (2d Cir. 2005) (giving particular
deference to factfinder’s demeanor findings). The agency did
not abuse its discretion in declining to give weight to
Uddin’s documentary evidence, so that evidence did not
rehabilitate his credibility. See Y.C. v. Holder, 741 F.3d
324, 332 (2d Cir. 2013) (holding that “[w]e generally defer
to the agency’s evaluation of the weight to be afforded to an
applicant’s documentary evidence” and deferring to agency’s
decision to afford little weight to letter from applicant’s
spouse); Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.
5
2007) (“An applicant’s failure to corroborate his or her
testimony may bear on credibility, because the absence of
corroboration in general makes an applicant unable to
rehabilitate testimony that has already been called into
question.”).
Finally, Uddin’s arguments that the IJ should have
inquired about his mental condition and the BIA should have
remanded for the IJ to reconsider credibility in light of a
psychological report are unavailing. He was asked about his
alleged memory problems at the hearing, he testified that he
had not seen a doctor about his memory, and he twice confirmed
that “[e]verything [wa]s okay” when questioned further about
his memory. The BIA was not required to remand for
consideration of a report that Uddin submitted on appeal
because remand requires “material, previously unavailable
evidence” and Uddin did not establish that he could not have
obtained the report earlier. Li Yong Cao v. U.S. Dep’t of
Justice, 421 F.3d 149, 156 (2d Cir. 2005); see also 8 C.F.R.
§ 1003.2(c)(1) (motion shall not be granted unless the new
evidence “was not available and could not have been discovered
or presented at the former hearing”). We decline to reach
Uddin’s argument that his former attorney should have
6
submitted evidence during the hearing because Uddin did not
raise an ineffective assistance of counsel claim before the
agency. See Arango-Aradondo v. INS, 13 F.3d 610, 614 (2d
Cir. 1994) (declining to reach ineffective assistance claim
not raised before the BIA).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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