         09-2828-ag
         Das v. Holder
                                                                                        BIA
                                                                                  Elstein, IJ
                                                                               A079 127 655
                                                                               A079 131 030
                              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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 23 rd day of September, two thousand ten.
 5
 6       PRESENT:
 7                REENA RAGGI,
 8                RICHARD C. WESLEY,
 9                GERARD E. LYNCH,
10                     Circuit Judges.
11       _______________________________________
12
13       SHOMBHU KUMAR DAS, a.k.a. ZHOMBHU DAS,
14       a.k.a. DAS SHOMBHU KUMAR, OMA RANI DEB,
15       a.k.a. DEB OMA RANI, a.k.a. UMA RANI DEB,
16                Petitioners,
17
18                       v.                                     09-2828-ag
19                                                              NAC
20       ERIC H. HOLDER, JR., U.S. ATTORNEY
21       GENERAL,
22                Respondent.
23       _______________________________________
24
25       FOR PETITIONERS:              Amy N. Gell, Gell & Gell, New York,
26                                     New York.
27
28       FOR RESPONDENT:               Tony West, Assistant Attorney
29                                     General, William C. Peachey,
30                                     Assistant Director, Matthew A.
31                                     Spurlock, Attorney, Office of
32                                     Immigration Litigation, Civil
1                           Division, United States Department
2                           of Justice, Washington, D.C.
3
4
5        UPON DUE CONSIDERATION of this petition for review of a

6    decision of the Board of Immigration Appeals (“BIA”), it is

7    hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

8    review is DENIED in part and DISMISSED in part.

9        Petitioners, both natives and citizens of Bangladesh,

10   seek review of a June 1, 2009, order of the BIA, affirming

11   the September 19, 2007, decision of Immigration Judge (“IJ”)

12   Annette S. Elstein, denying their applications for

13   withholding of removal and relief under the Convention

14   Against Torture (“CAT”).   In re Das, Nos. A079 127 655, A

15   079 131 030 (B.I.A. June 1, 2009), aff’g Nos. A079 127 655,

16   A 079 131 030 (Immig. Ct. N.Y. City Sept. 19, 2007).     We

17   assume the parties’ familiarity with the underlying facts

18   and procedural history of the case.

19       Under the circumstances of this case, we review the

20   IJ’s decision as supplemented by the BIA.     See Yan Chen v.

21   Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).     We review the

22   agency’s factual findings, including adverse credibility

23   determinations, under the substantial evidence standard,

24   treating them as “conclusive unless any reasonable


                                   2
1    adjudicator would be compelled to conclude to the contrary.”

2    8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519

3    F.3d 90, 95 (2d Cir. 2008); Diallo v. INS, 232 F.3d 279, 287

4    (2d Cir. 2000)(“We reverse [the BIA] only if no reasonable

5    fact-finder could have failed to find the past persecution

6    or fear of future persecution necessary to sustain the

7    petitioner’s burden.”).

8    I.   Unexhausted and Waived Claims

9         As an initial matter, we are without jurisdiction to

10   consider Petitioners’ unexhausted challenge to the IJ’s

11   denial of their CAT claim, and we must dismiss the petition

12   for review to that extent.   See 8 U.S.C. § 1252(d)(1).    We

13   therefore review only Petitioners’ challenge to the agency’s

14   denial of their applications for withholding of removal.

15        We also decline to review Petitioners’ unexhausted

16   arguments that the IJ failed to provide them with an

17   opportunity to explain the inconsistencies in their

18   testimony, that the IJ overlooked a plausible explanation

19   for those inconsistencies, and that the IJ failed to make a

20   specific adverse credibility determination. Petitioners

21   failed to raise these arguments in their appeal to the BIA,

22   and because the Government has raised this failure to



                                   3
1    exhaust in its brief to this Court, we decline to consider

2    them.      See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104,

3    119-22 (2d Cir. 2007) (“[W]hen an applicant for asylum or

4    withholding of removal has failed to exhaust an issue before

5    the BIA, and that issue is, therefore, not addressed in a

6    reasoned BIA decision, we are . . . usually unable to review

7    the argument.”).

8          Additionally, because Petitioners have failed to

9    sufficiently challenge, either before this Court or in their

10   appeal brief to the BIA, the IJ’s finding that Deb’s alleged

11   assault in 1998 was not motivated by a statutorily protected

12   ground, we deem any such argument waived.      Yueqing Zhang v.

13   Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).

14   II.   Withholding of Removal

15         With regard to their withholding of removal claims,

16   Petitioners’ arguments that the agency erred in finding that

17   they failed to meet their burden of demonstrating past

18   persecution or a well-founded fear of persecution are

19   unavailing.

20         A.     Past Persecution

21         The record supports the agency’s determination that

22   Petitioners failed to demonstrate that they suffered past



                                      4
1    persecution.   The IJ reasonably found that Petitioners’

2    claim that Das was stabbed in 1998 was not credible.     As the

3    IJ found, although Das testified that he was released after

4    receiving first aid treatment, a medical document he

5    submitted stated that he received treatment for a month.

6    Although minor and isolated discrepancies may be

7    insufficient to support an adverse credibility finding, see

8    Diallo, 232 F.3d at 288, the discrepancy here relates to

9    events at the heart of Petitioners’ claim because Das

10   testified that the stabbing was the worst harm he had

11   suffered.   Thus, the IJ reasonably relied on the

12   inconsistency, and on the fact that the medical document was

13   not otherwise reliable since it was not contemporaneous and

14   the doctor who wrote it was apparently a relative of Das, to

15   call into question Petitioners’ credibility regarding the

16   stabbing incident.    See Tu Lin v. Gonzales, 446 F.3d 395,

17   402 (2d Cir. 2006).

18       Additionally, Petitioners argue that evidence that Das

19   received threatening letters which directed him to leave

20   Bangladesh, and that Das was “attacked” on six occasions in

21   Bangladesh established past persecution based on their

22   religion.   Past persecution requires that the harm be



                                    5
1    sufficiently severe, rising above “mere harassment.” See

2    Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d

3    Cir. 2006).     “[P]ersecution is an extreme concept that does

4    not include every sort of treatment our society regards as

5    offensive.”     Ai Feng Yuan v. U.S. Dep’t of Justice, 416 F.3d

6    192, 198 (2d Cir. 2005), overruled on other grounds by Shi

7    Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d

8    Cir.2005) (en banc).     Here, although there is record

9    evidence that Petitioners were harassed and threatened on

10   account of their religion, Petitioners fail to demonstrate

11   that the harassment rose to the level of persecution.        With

12   regard to the six “attacks” that Das suffered, Das testified

13   that they were incidents similar to one in which “some

14   miscreants came [to his father’s home], . . . broke open the

15   door, . . . destroyed some papers[,] and threatened [his

16   father].”     Such incidents are not sufficient to compel a

17   reasonable factfinder to find past persecution.     See

18   Balachova v. Mukasey, 547 F.3d 374, 386 (2d Cir. 2008)

19   (holding that breaking down a door, searching and looting a

20   house, and detention did not “cross the line from harassment

21   to persecution”).     Additionally, the only physical harm

22   Petitioners claim to have suffered is Das’s stabbing, which



                                     6
1    the IJ found was not credibly established, and Deb’s alleged

2    assault, which the IJ found had not been shown to be based

3    on a protected ground.   Accordingly, the IJ reasonably

4    concluded that Petitioners had not suffered past

5    persecution.

6        B.   Well-Founded Fear of Persecution

7        Because Petitioners failed to demonstrate that they

8    suffered past persecution, they were not entitled to a

9    presumption of a well-founded fear of future persecution.

10   See 8 C.F.R. § 1208.13(b).   To the extent Petitioners argue

11   that they have demonstrated a pattern or practice of

12   persecution against Hindus in Bangladesh, the agency

13   considered Petitioners’ evidence and reasonably found that

14   they failed to demonstrate a pattern or practice sufficient

15   to qualify for withholding of removal.     See Santoso v.

16   Holder, 580 F.3d 110, 112 (2d Cir. 2009); cf. Mufied v.

17   Mukasey, 508 F.3d 88, 91 (2d Cir. 2007).     Moreover, it was

18   not improper for the agency to conclude that Petitioners’

19   testimony that several members of their family, who were

20   Hindu, continued to live in Bangladesh without incurring any

21   harassment or mistreatment weighed against their claim of a

22   well-founded fear of persecution.   See Melgar de Torres v.



                                   7
1    Reno, 191 F.3d 307, 313 (2d Cir. 1999) (finding that asylum

2    applicant’s well-founded fear of persecution claim was

3    diminished where her mother and daughters continued to live

4    in her native country without harm).    Thus, substantial

5    evidence supports the agency’s finding that Petitioners

6    failed to establish a pattern or practice of persecution

7    against Hindus in Bangladesh.

8        The IJ also reasonably found that Petitioners failed to

9    demonstrate that they have a well-founded fear of

10   persecution based on Das’s alleged political affiliation

11   with the Awami League.   As the BIA correctly noted, the IJ

12   found that Das’s testimony relating to that affiliation was

13   “vague and unspecific” and lacking in corroborating

14   evidence.   Petitioners fail either to address the agency’s

15   findings in this respect or to point to evidence in the

16   record supporting their claim that Das is affiliated with

17   the Awami League.   A reasonable adjudicator would not be

18   compelled to conclude that petitioners had a well founded

19   fear of future persecution, and the denial of petitioners’

20   applications was therefore not erroneous.

21       For the foregoing reasons, the petition for review is

22   DENIED in part and DISMISSED in part.    As we have completed



                                     8
1    our review, any stay of removal that the Court previously

2    granted in this petition is VACATED, and any pending motion

3    for a stay of removal in this petition is DISMISSED as moot.

 4                              FOR THE COURT:
 5                              Catherine O’Hagan Wolfe, Clerk
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