     17-4115
     Bhuiyan v. Barr
                                                                                   BIA
                                                                            Vomacka, IJ
                                                                           A205 643 430
                            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
 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 22nd day of January, two thousand twenty.
 5
 6   PRESENT:
 7            RICHARD C. WESLEY,
 8            PETER W. HALL,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   MONIR AHAMMED BHUIYAN, AKA MONIR
14   HOSSAIN,
15                 Petitioner,
16
17                     v.                                        17-4115
18                                                               NAC
19   WILLIAM P. BARR, UNITED STATES
20   ATTORNEY GENERAL,
21                 Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                   Visuvanathan Rudrakumaran, New
25                                     York, NY.
26
27   FOR RESPONDENT:                   Joseph H. Hunt, Assistant
28                                     Attorney General; Justin Markel,
29                                     Senior Litigation Counsel;
30                                     Margaret O’Donnell, Trial
31                                     Attorney, Office of Immigration
1                                     Litigation, United States
2                                     Department of Justice, Washington,
3                                     DC.
4
5          UPON DUE CONSIDERATION of this petition for review of a

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

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

8    is DENIED.

9          Petitioner Monir Ahammed Bhuiyan, a native and citizen

10   of Bangladesh, seeks review of a December 1, 2017, decision

11   of the BIA affirming a February 27, 2017, decision of an

12   Immigration Judge (“IJ”) denying Bhuiyan’s application for

13   asylum,    withholding      of   removal,            and    relief   under    the

14   Convention Against Torture (“CAT”).                    In re Monir Ahammed

15   Bhuiyan, No. A 205 643 430 (B.I.A. Dec. 1, 2017), aff’g No. A

16   205 643 430 (Immig. Ct. N.Y. City Feb. 27, 2017).                      We assume

17   the   parties’     familiarity    with         the    underlying      facts    and

18   procedural history in this case.

19         In his brief, Bhuiyan argues for the first time that the

20   agency    failed    to    make   an   explicit             adverse   credibility

21   determination.       In    addition       to    being        unexhausted,     this

22   argument finds no support in the record.                    The IJ stated that

23   Bhuiyan was not credible and made specific findings, Bhuiyan
                                           2
1    challenged the adverse credibility determination on appeal to

2    the BIA, and the BIA agreed with the IJ’s adverse credibility

3    determination.         Accordingly, we have reviewed both the BIA’s

4    and IJ’s decisions as to the adverse credibility determination.

5    See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).

6    We review the adverse credibility determination under the

7    substantial evidence standard.             See 8 U.S.C. § 1252(b)(4)(B);

8    Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018).

9    “Considering   the      totality    of      the    circumstances,   and   all

10   relevant factors, a trier of fact may base a credibility

11   determination on . . . the inherent plausibility of the

12   applicant’s    .   .    .   account,       the    consistency   between   the

13   applicant’s . . . written and oral statements . . . , the

14   internal   consistency       of    each     such    statement,    [and]   the

15   consistency of such statements with other evidence of record

16   . . . without regard to whether an inconsistency, inaccuracy,

17   or falsehood goes to the heart of the applicant’s claim . .

18   . .”   8 U.S.C. § 1158(b)(1)(B)(iii).                “We defer . . . to an

19   IJ’s credibility determination unless, from the totality of

20   the circumstances, it is plain that no reasonable fact-finder

21   could make such an adverse credibility ruling.”                  Xiu Xia Lin
                                            3
1    v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei

2    Gao, 891 F.3d at 76.      Substantial evidence supports the

3    agency’s determination that Bhuiyan was not credible as to

4    his claim that he was persecuted by the Awami League and the

5    police on account of his membership in Jubo Dal, the youth

6    branch of the Bangladesh Nationalist Party (“BNP”).

7        The agency reasonably relied on Bhuiyan’s inconsistent

8    statements about the number of times he was attacked by Awami

9    League members and whether he was attacked by the police.

10   See 8 U.S.C. § 1158(b)(1)(B)(iii).     At his credible fear

11   interview, Bhuiyan stated that he was attacked by Awami League

12   members once in 2009, he explicitly denied prior or subsequent

13   attacks, and he stated that he had never been mistreated by

14   police.   In contrast, he testified that he was attacked by

15   Awami League members three times and that he was arrested,

16   detained, and severely beaten by the police in 2010.      The

17   agency was not required to credit Bhuiyan’s explanation that

18   he was disoriented and nervous during his interview.      See

19   Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A

20   petitioner must do more than offer a plausible explanation

21   for . . . inconsistent statements to secure relief; he must
                                   4
1    demonstrate that a reasonable fact-finder would be compelled

2    to credit his testimony.” (internal quotations omitted));

3    Yun-Zui    Guan,      432    F.3d      at       397   n.6   (applicant’s        “mere

4    recitation that he was nervous or felt pressured during an

5    airport interview will not automatically prevent” the agency

6    from    relying      on    statements       made       during    the   interview).

7    Despite    an    error      in   the    agency’s         reliance      on   a   third

8    inconsistency regarding whether Bhuiyan’s attackers pressured

9    him to switch parties, these major inconsistencies regarding

10   the bases of his claim provide substantial evidence to support

11   the adverse credibility determination.                      See Xian Tuan Ye v.

12   Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006)

13   (holding that a material inconsistency regarding the basis of

14   an   applicant’s      asylum      claim         is    substantial      evidence   of

15   adverse credibility); see also Xiao Ji Chen v. U.S. Dep’t of

16   Justice, 471 F.3d 315, 338–39 (2d Cir. 2006) (denying petition

17   despite errors in adverse credibility determination because

18   there was substantial evidence for the determination absent

19   the errors).

20          Moreover,     the     adverse        credibility         determination     is

21   bolstered       by   the    agency’s        implausibility         findings.      See
                                                 5
1    8 U.S.C. § 1158(b)(1)(B)(iii); Wensheng Yan v. Mukasey, 509

2    F.3d 63, 66 (2d Cir. 2007) (“It is well settled that, in

3    assessing the credibility of an asylum applicant’s testimony,

4    an IJ is entitled to consider whether the applicant’s story

5    is inherently implausible.”).         And the IJ’s findings are

6    sufficiently tethered to the record.        See Siewe v. Gonzales,

7    480 F.3d 160, 168–69 (2d Cir. 2007) (An implausibility finding

8    that is based on “speculation that inheres in inference is

9    not   ‘bald’   if   the   inference   is   made   available    to   the

10   factfinder by record facts, or even a single fact, viewed in

11   the light of common sense and ordinary experience.”).               The

12   IJ reasonably found implausible Bhuiyan’s testimony that he

13   was unaware of the BNP’s involvement in violence, because he

14   later admitted that he had heard about violence and war crimes

15   committed by BNP members and his memorandum of law in support

16   of his application acknowledged violence between the BNP and

17   Awami League.       Additionally, the IJ reasonably found it

18   implausible that Bhuiyan would go to the police and turn over

19   threatening letters without making copies of them as he

20   testified that the police had destroyed a previous letter,

21   refused to investigate, and detained and beat him.            Finally,
                                      6
1    as the agency found, Bhuiyan could not explain why local

2    higher-level BNP and Jubo Dal party members were able to

3    continue in their roles without interference while he had

4    allegedly been repeatedly targeted by the Awami League.

5         Finally, the agency did not err in finding that Bhuiyan’s

6    documentary evidence failed to rehabilitate his credibility.

7    “We generally defer to the agency’s evaluation of the weight

8    to be afforded to an applicant’s documentary evidence.”                   Y.C.

9    v.   Holder,    741   F.3d   324,   332    (2d    Cir.    2013).      The    IJ

10   reasonably afforded diminished weight to the letters and

11   affidavits from family, doctors, and fellow party members

12   because   the    authors     were   interested      parties      and/or     not

13   subject   to    cross-examination,        and    some    of   the   documents

14   lacked detail about the alleged persecution.                  See id. at 334

15   (deferring to agency’s decision to afford little weight to

16   relative’s letter from China because it was unsworn and from

17   an interested witness); Matter of H-L-H- & Z-Y-Z-, 25 I. & N.

18   Dec. 209, 215 (B.I.A. 2010) (finding that letters from alien’s

19   friends and family were insufficient to provide substantial

20   support for alien’s claims because they were from interested

21   witnesses not subject to cross-examination), overruled on
                                          7
1    other grounds by Hui Lin Huang v. Holder, 677 F.3d 130, 133–

2    38 (2d Cir. 2012).

3        Given     Bhuiyan’s   inconsistent     statements       and   the

4    implausible aspects of his testimony, the agency’s adverse

5    credibility    determination     is   supported   by    substantial

6    evidence.     See 8 U.S.C. § 1158(b)(1)(B)(iii).        The adverse

7    credibility     determination    is    dispositive     of    asylum,

8    withholding of removal, and CAT relief because all three forms

9    of relief are based on the same factual predicate.          See Paul

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

11       For the foregoing reasons, the petition for review is

12   DENIED.   All pending motions and applications are DENIED and

13   stays VACATED.

14                                   FOR THE COURT:
15                                   Catherine O’Hagan Wolfe,
16                                   Clerk of Court




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