    08-3289-ag
    Hossain v. Holder
                                                                                  BIA
                                                                           Montante, IJ
                                                                          A072 373 925
                                                                          A096 442 850
                         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
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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 18 th day of February, two thousand               ten.

    PRESENT:
              GUIDO CALABRESI,
              ROSEMARY S. POOLER,
              ROBERT A. KATZMANN,
                           Circuit Judges.
    _______________________________________

    JAMAL HOSSAIN, ROKEYA HOSSAIN,
             Petitioners,

                        v.                                 08-3289-ag
                                                           NAC
    ERIC H. HOLDER, JR., ATTORNEY GENERAL, *
             Respondent.
    _______________________________________
     FOR PETITIONERS:      Hector M. Roman, Roman & Singh LLP,
                           Jackson Heights, N.Y..




                  *
                Pursuant to Federal Rule of Appellate Procedure
        43(c)(2), Attorney General Eric H. Holder Jr., is
        automatically substituted for former Attorney General Michael
        B. Mukasey as respondent in this case.
FOR RESPONDENT:           Gregory G. Katsas, Assistant
                          Attorney General, Linda S. Wernery,
                          Assistant Director, Gerald M.
                          Alexander, Trial 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 in part and DISMISSED in part.

    Jamal Hossain and Rokeya Hossain, husband and wife, are

natives and citizens of Bangladesh who seek review of a June

6, 2008 order of the BIA, affirming the August 14, 2006

decision of Immigration Judge (“IJ”) Phillip J. Montante,

which denied their application for asylum and Mr. Hossain’s

application for withholding of removal.    In re Jamal Hossain

et al., Nos. A072 373 925, A096 442 850 (B.I.A. June 6,

2008), aff’g Nos. A072 373 925, A096 442 850 (Immig. Ct.

Buffalo Aug. 14, 2006).    We assume the parties’ familiarity

with the underlying facts and procedural history in this

case.

    When the BIA agrees with the IJ’s conclusion that a

petitioner is not credible and, without rejecting any of the

IJ’s grounds for decision, emphasizes particular aspects of

that decision, this Court reviews both the BIA’s and IJ’s

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opinions—or more precisely, the Court reviews the IJ’s

decision including the portions not explicitly discussed by

the BIA.    Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d

Cir. 2005).     We review the agency’s factual findings under

the substantial evidence standard.     See 8 U.S.C.

§ 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90,

95 (2d Cir. 2008).     We review de novo questions of law and

the application of law to undisputed fact.     Salimatou Bah v.

Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

    We find that substantial evidence supports the IJ’s

adverse credibility determination.     In his initial asylum

application, Mr. Hossain claimed that (1) he feared he would

be persecuted due to his father's political activities, and

(2) that neither he nor anyone in his family had ever been

arrested.     But in his second asylum application, Mr. Hossain

claimed that his father and brother had been unlawfully

arrested due to their political beliefs, that his father had

been unlawfully imprisoned on two occasions, and that the

“same people” who arrested his brother “were, at the time,

looking for [Mr. Hossain], even though [Mr. Hossain] had

committed no crime."     At the hearing before the IJ, Mr.

Hossain claimed, for the first time, that he had personally


                                3
engaged in activism, was attacked during a demonstration at

which a bomb exploded killing some people, learned that he

would be falsely charged with the murders for political

reasons, and then fled Bangladesh in 1992.

    Citing Ming Shi Xue v. BIA, 439 F.3d 111, 121 (2d Cir.

2006), Petitioners contend that the IJ erred in failing to

allow Mr. Hossain the opportunity to explain the omission of

these facts from his asylum applications.     However, Mr.

Hossain was given such an opportunity with respect to his

first asylum application and, indeed, did attempt to explain

that the error was a result of his lack of familiarity with

English and bad advice he received from the legal assistant

who prepared the application on his behalf.     The IJ

concluded that, even accepting this explanation, it would

not account for Mr. Hossain’s failure to include the

information on his second asylum application filed nine

years later.

    The IJ did not specifically request an explanation from

Mr. Hossain for the omission from his second asylum

application.   However, because the omission of the events

that allegedly lead to Mr. Hossain’s departure from

Bangladesh in 1992 was a "plainly obvious" and “dramatic”

incongruity, the IJ was not required to specifically request

an explanation.   Ming Shi Xue, 439 F.3d at 121.    Where "the

                              4
inconsistency is ‘dramatic' or obvious on its face . . . the

petitioner can be assumed to be aware-without being told-of

the need to explain it."    Id. 122 n.13.   We conclude that

the agency did not err in basing its adverse credibility

finding on this omission.    See, e.g., Cheng Tong Wang v.

Gonzales, 449 F.3d 451, 453 (2d Cir. 2006) (“omissions that

go to a heart of an applicant’s claim can form the basis for

an adverse credibility determination”).

    Having found that Mr. Hossain’s testimony was not

credible, the IJ reasonably concluded that he had failed to

submit sufficient documentation to rehabilitate his

testimony.   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471

F.3d 315, 341 (2d Cir. 2006) (noting that an IJ need not

first identify particular pieces of missing, relevant

evidence, and show that this evidence was reasonably

available to the applicant where the IJ bases his rejection

of a petitioner’s claim not on an absence of corroborative

evidence, but rather on his finding that petitioner’s

largely uncorroborated non-credible testimony was

insufficient to establish eligibility for relief).     As to

the evidence Mr. Hossain did submit, he has waived any

challenge to the IJ’s refusal to consider it.     See Yueqing

Zhang v. Gonzales, 426 F.3d 540, 546 n.7 (2d Cir. 2005).


                               5
    Because the IJ’s adverse credibility determination was

supported by substantial evidence, see Corovic, 519 F.3d at

95, the agency’s denial of Petitioners’ application for

asylum and Mr. Hossain’s application for withholding of

removal was not improper, see Paul v. Gonzales, 444 F.3d

148, 156 (2d Cir. 2006) (recognizing that a withholding of

removal claim necessarily fails if petitioner cannot show

objective likelihood of persecution necessary for asylum

claim and both claims have the same factual predicate).

    Finally, while Petitioners contend that the agency

erred in failing to consider Mr. Hossain’s claim for relief

under the Convention Against Torture (“CAT”), they failed to

challenge the failure to grant such relief before the BIA.

Because Petitioners did not exhaust their administrative

remedies with regard to CAT relief, we lack jurisdiction to

review this claim.   See Karaj v. Gonzales, 462 F.3d 113, 119

(2d Cir. 2006).

    For the foregoing reasons, the petition for review is

DENIED in part and DISMISSED in part.   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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