     14-2604
     Talukder v. Lynch
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A200 170 238
                              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.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   4th day of October, two thousand sixteen.
 5
 6   PRESENT:
 7            REENA RAGGI,
 8            DEBRA ANN LIVINGSTON,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   MD SHOPON TALUKDER,
14            Petitioner,
15
16                       v.                                          14-2604
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                   Md Shopon Talukder, pro se, Jamaica,
24                                     New York.
25
26   FOR RESPONDENT:                   Benjamin C. Mizer, Principal Deputy
27                                     Assistant Attorney General; Erica B.
28                                     Miles, Senior Litigation Counsel;
29                                     Jesse Lloyd Busen, Trial Attorney,
30                                     Office of Immigration Litigation,
31                                     United States Department of Justice,
32                                     Washington, D.C.
1         UPON DUE CONSIDERATION of this petition for review of a

2    Board of Immigration Appeals (“BIA”) decision, it is hereby

3    ORDERED, ADJUDGED, AND DECREED that the petition for review is

4    DENIED.

5         Petitioner Md Shopon Talukder, a native and citizen of

6    Bangladesh, seeks review of a June 24, 2014 decision of the BIA,

7    affirming a May 9, 2013 decision of an Immigration Judge (“IJ”)

8    denying Talukder’s application for asylum, withholding of

9    removal, and relief under the Convention Against Torture

10   (“CAT”).    See In re Md Shopon Talukder, No. A200 170 238 (B.I.A.

11   June 24, 2014), aff’g No. A200 170 238 (Immig. Ct. N.Y.C. May

12   9, 2013).      We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14        Under the circumstances of this case, we review both the

15   IJ and BIA opinions, see Wangchuck v. Dep’t of Homeland Sec.,

16   448 F.3d 524, 528 (2d Cir. 2006), applying well established

17   standards of review, see 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin

18   v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).

19   I.   Adverse Credibility Determination

20        For asylum applications like Talukder’s, the agency may,

21   “[c]onsidering the totality of the circumstances,” base a

22   credibility     finding     on       an   applicant’s   demeanor,

23   inconsistencies in his statements, and other record evidence

                                      2
1    “without regard to whether” they go “to the heart of the

2    applicant’s claim.”     8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu

 3   Xia Lin, 534 F.3d at 163-64.         We “defer . . . to an IJ’s

 4   credibility determination unless, from the totality of the

 5   circumstances, it is plain that no reasonable fact-finder could

6    make such an adverse credibility ruling.”     Xiu Xia Lin, 534 F.3d

7    at 167.

8         Here, the agency reasonably relied on Talukder’s demeanor

9    in   finding     him    not     credible.       See      8   U.S.C.

10   § 1158(b)(1)(B)(iii).     In    particular,   the   IJ   noted   that

11   Talukder was hesitant and unresponsive when testifying about

12   his role as an executive member of the Bangladesh Nationalist

13   Party (“BNP”) and about incidents of harm he purportedly

14   suffered as a result of that membership.            We afford this

15   assessment of Talukder’s demeanor “particular deference.”          Li

16   Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006).

17        The agency’s demeanor finding is further supported by

18   record inconsistencies.        See id. (“We can be still more

19   confident in our review of observations about an applicant’s

20   demeanor where . . . they are supported by specific examples

21   of inconsistent testimony.”); see also Xiu Xia Lin, 534 F.3d

22   at 165-67.   Talukder testified that he joined the BNP in 1998,

23   but his asylum application stated that he joined in 2001.

                                      3
1    Further, Talukder submitted an affidavit from his wife and a

2    medical report, both of which stated that Awami League members

3    had stabbed Talukder multiple times in the upper left arm, left

4    hand, and right foot during an attempted kidnapping in November

5    2009.    Talukder, however, did not mention this incident in his

6    asylum application, and his testimony regarding a November 2009

7    incident was inconsistent with his wife’s affidavit and the

8    medical report.      See Xiu Xia Lin, 534 F.3d at 166 n.3 (”An

9    inconsistency      and   an    omission     are   .     .    .    functionally

10   equivalent.”).       Talukder     failed    to    provide        a   compelling

11   explanation for these inconsistencies.                See Majidi, 430 F.3d

12   at 80.

13       Having    questioned       Talukder’s    credibility,            the   agency

14   reasonably    faulted    his    failure     to    provide        corroborating

15   evidence to rehabilitate his testimony.                 See Biao Yang v.

16   Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).             In addition to the

17   inconsistencies     created     by    certain     of    his      corroborating

18   evidence,    Talukder    did    not   provide     any       documentation     to

19   corroborate his claim that he remains an active BNP member in

20   the United States.

21       Given    the   demeanor,     inconsistency,         and      corroboration

22   findings, we identify no basis to disturb the agency’s adverse

23   credibility determination, see Xiu Xia Lin, 534 F.3d at 165-66,

                                           4
1    which   is   dispositive   of   Talukder’s   claims   for   asylum,

2    withholding of removal, and CAT relief, see Paul v. Gonzales,

3    444 F.3d 148, 156-57 (2d Cir. 2006).

4    II.   Continuance and Fairness of Hearing

5          Talukder argues that the IJ erred in denying his request

6    for a continuance and denied him a fair hearing.      We review an

7    IJ’s denial of a continuance request “under a highly deferential

8    standard of abuse of discretion.”    Morgan v. Gonzales, 445 F.3d

9    549, 551 (2d Cir. 2006).        An IJ “may grant a motion for

10   continuance for good cause shown,” 8 C.F.R. § 1003.29, and

11   “abuse[s] his discretion in denying a continuance if ‘(1) [his]

12   decision rests on an error of law (such as application of the

13   wrong legal principle) or a clearly erroneous factual finding

14   or (2) [his] decision—though not necessarily the product of a

15   legal error or a clearly erroneous factual finding—cannot be

16   located within the range of permissible decisions,’” Morgan,

17   445 F.3d at 551-52 (alterations in original) (quoting Zervos

18   v. Verizon N.Y., Inc., 252 F.3d 163, 169 (2d Cir. 2001)).

19         Here, the IJ did not abuse her discretion in denying

20   Talukder’s motion for a continuance.         Talukder had twenty

21   months to submit evidence in support of his application, but

22   he failed to do so or timely to move for a continuance, instead



                                      5
1    waiting until just six days before his hearing to seek

2    additional time.    See id.

3        Nor are we persuaded by Talukder’s argument that the IJ’s

4    hostility denied him a fair hearing.    Although remand may be

5    required in rare cases where an IJ demonstrates bias and

6    hostility towards an asylum applicant, see Guo-Le Huang v.

7    Gonzales, 453 F.3d 142, 148 (2d Cir. 2006), the record here does

8    not support Talukder’s claims of hostility or bias.

9        For the foregoing reasons, the petition for review is

10   DENIED.    As we have completed our review, any stay of removal

11   that the Court previously granted in this petition is VACATED,

12   and any pending motion for a stay of removal in this petition

13   is DISMISSED as moot.    Any pending request for oral argument

14   in this petition is DENIED in accordance with Federal Rule of

15   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

16   34.1(b).

17                       FOR THE COURT:
18                       Catherine O’Hagan Wolfe, Clerk of Court




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