20-3618
Uddin v. Garland
BIA
Thompson, IJ
A206 675 323
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 26th day of October, two thousand twenty-
5 two.
6
7 PRESENT:
8 JON O. NEWMAN,
9 DENNY CHIN,
10 RICHARD J. SULLIVAN,
11 Circuit Judges.
12 _____________________________________
13
14 ALAUDDIN UDDIN,
15 Petitioner,
16
17 v. 20-3618
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24
25
26 FOR PETITIONER: Khagendra Gharti-Chhetry, New
27 York, NY.
28
1 FOR RESPONDENT: Brian M. Boynton, Acting Assistant
2 Attorney General; Anthony C.
3 Payne, Assistant Director; Jessica
4 D. Strokus, Trial Attorney, Office
5 of Immigration Litigation, United
6 States Department of Justice,
7 Washington, DC.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Petitioner Alauddin Uddin, a native and citizen of
14 Bangladesh, seeks review of a September 28, 2020 decision of
15 the BIA, affirming a September 13, 2018 decision of an
16 Immigration Judge (“IJ”), denying Uddin’s application for
17 asylum, withholding of removal, and relief under the
18 Convention Against Torture (“CAT”). In re Alauddin Uddin,
19 No. A206 675 323 (B.I.A. Sept. 28, 2020), aff’g No. A206 675
20 323 (Immigr. Ct. N.Y. City Sept. 13, 2018). We assume the
21 parties’ familiarity with the underlying facts and procedural
22 history.
23 Under the circumstances, we have reviewed both the IJ’s
24 and BIA’s opinions. See Wangchuck v. Dep’t of Homeland Sec.,
25 448 F.3d 524, 528 (2d Cir. 2006). The IJ did not abuse his
26 discretion in denying a continuance for Uddin to submit
2
1 corroborating evidence, and substantial evidence supports the
2 agency’s determination that Uddin was not credible as to his
3 claim that Awami League members attacked him on account of
4 his political activities with the Bangladesh Nationalist
5 Party (“BNP”).
6 We review the denial of a continuance “under a highly
7 deferential standard of abuse of discretion.” Morgan v.
8 Gonzales, 445 F.3d 549, 551 (2d Cir. 2006). An IJ “may grant
9 a motion for continuance for good cause shown.” 8 C.F.R.
10 § 1003.29 (effective until Jan. 14, 2021). The IJ did not
11 abuse his discretion in declining to delay proceedings to
12 provide Uddin additional time to obtain and present
13 corroborating documents, given that he had been instructed to
14 submit such evidence multiple times and had more than four
15 years to do so. See Morgan, 445 F.3d at 553; cf. Chuilu Liu
16 v. Holder, 575 F.3d 193, 198 (2d Cir. 2009) (providing that
17 “the alien bears the ultimate burden of introducing such
18 evidence without prompting from the IJ”).
19 We review the agency’s adverse credibility determination
20 for substantial evidence, see Hong Fei Gao v. Sessions, 891
21 F.3d 67, 76 (2d Cir. 2018), and “the administrative findings
22 of fact are conclusive unless any reasonable adjudicator
3
1 would be compelled to conclude to the contrary,” 8 U.S.C.
2 § 1252(b)(4)(B). “Considering the totality of the
3 circumstances, and all relevant factors, a trier of fact may
4 base a credibility determination on the demeanor, candor, or
5 responsiveness of the applicant or witness, . . . the
6 consistency between the applicant’s or witness’s written and
7 oral statements (whenever made and whether or not under oath,
8 and considering the circumstances under which the statements
9 were made), the internal consistency of each such statement
10 . . . , and any inaccuracies or falsehoods in such statements,
11 without regard to whether an inconsistency, inaccuracy, or
12 falsehood goes to the heart of the applicant’s claim, or any
13 other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We
14 defer . . . to an IJ’s credibility determination unless, from
15 the totality of the circumstances, it is plain that no
16 reasonable fact-finder could make such an adverse credibility
17 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
18 2008); accord Hong Fei Gao, 891 F.3d at 76.
19 The IJ reasonably relied in part on Uddin’s demeanor,
20 noting that his testimony was repeatedly unresponsive. See
21 8 U.S.C. § 1158(b)(1)(B)(iii). We generally defer to an IJ’s
22 assessment of demeanor. See Majidi v. Gonzales, 430 F.3d 77,
4
1 81 n.1 (2d Cir. 2005) (recognizing deference due to the trier
2 of fact’s assessment of demeanor); Jin Chen v. U.S. Dep’t of
3 Justice, 426 F.3d 104, 113 (2d Cir. 2005) (“We give particular
4 deference to credibility determinations that are based on the
5 adjudicator’s observation of the applicant’s demeanor, in
6 recognition of the fact that the IJ’s ability to observe the
7 witness’s demeanor places [the IJ] in the best position to
8 evaluate whether apparent problems in the witness’s testimony
9 suggest a lack of credibility or, rather, can be attributed
10 to an innocent cause such as difficulty understanding the
11 question.”). Moreover, the demeanor finding is supported by
12 the record, which shows that Uddin was unresponsive when asked
13 to describe one of his attacks, and, among other questions,
14 whether he went to the police only once on a certain date,
15 why he had not obtained corroborating evidence earlier, and
16 when he was threatened.
17 The IJ’s demeanor finding, and the adverse credibility
18 determination as a whole, are further supported by Uddin’s
19 inconsistent statements regarding (1) whether he was attacked
20 two or three times, (2) whether those attacks occurred two
21 years before he left Bangladesh in 2014 or mere days before
22 his departure, (3) whether he made a report to police after
5
1 his first attack in January or in March after all the attacks,
2 and (4) whether Awami League members locked his store in an
3 attempt to extort him. See 8 U.S.C. § 1158(b)(1)(B)(iii);
4 cf. Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109
5 (2d Cir. 2006) (“We can be still more confident in our review
6 of observations about an applicant’s demeanor where, as here,
7 they are supported by specific examples of inconsistent
8 testimony.”). Although a minor date discrepancy need not
9 impugn an applicant’s credibility, see Diallo v. I.N.S., 232
10 F.3d 279, 288 (2d Cir. 2000), these inconsistencies were not
11 minor since they concern whether his attacks occurred mere
12 days before he fled the country or two years beforehand.
13 Uddin did not compellingly explain the inconsistencies. See
14 Majidi, 430 F.3d at 80 (“A petitioner must do more than offer
15 a plausible explanation for his inconsistent statements to
16 secure relief; he must demonstrate that a reasonable
17 fact-finder would be compelled to credit his testimony.”
18 (internal quotation marks omitted)).
19 Having questioned Uddin’s credibility, the agency
20 reasonably relied further on his failure to rehabilitate his
21 credibility with any documentary evidence corroborating his
22 claims, despite having more than four years to obtain such
6
1 evidence. “An applicant’s failure to corroborate his or her
2 testimony may bear on credibility, because the absence of
3 corroboration in general makes an applicant unable to
4 rehabilitate testimony that has already been called into
5 question.” Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.
6 2007).
7 The demeanor finding, inconsistencies, and lack of
8 corroboration provide substantial evidence for the agency’s
9 adverse credibility determination. See 8 U.S.C.
10 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167; see also
11 Likai Gao v. Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020)
12 (“[E]ven a single inconsistency might preclude an alien from
13 showing that an IJ was compelled to find him credible.
14 Multiple inconsistencies would so preclude even more
15 forcefully.”). That adverse credibility determination is
16 dispositive of asylum, withholding of removal, and CAT relief
17 because all three claims were based on the same factual
18 predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57
19 (2d Cir. 2006).
7
1 For the foregoing reasons, the petition for review is
2 DENIED. All pending motions and applications are DENIED and
3 stays VACATED.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe,
6 Clerk of Court
8