     15-698
     Shawon v. Lynch
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A200 817 282
                            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   16th day of August, two thousand sixteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            DENNY CHIN,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   ANWAR KABIR SHAWON,
14            Petitioner,
15
16                     v.                                            15-698
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                    David J. Rodkin, New York, New York.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; Russell
27                                       J.E. Verby, Senior Litigation
28                                       Counsel; John D. Williams, Trial
29                                       Attorney, Office of Immigration
30                                       Litigation, United States
1                                          Department of Justice, Washington,
2                                          D.C.
3
4          UPON DUE CONSIDERATION of this petition for review of a

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

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

7    DENIED.

8          Petitioner Anwar Kabir Shawon, a native and citizen of

9    Bangladesh, seeks review of a February 19, 2015, decision of

10   the   BIA    affirming      a    February      27,    2013,   decision     of   an

11   Immigration Judge (“IJ”) denying Shawon’s application for

12   asylum, withholding of removal, and relief under the Convention

13   Against Torture (“CAT”).              In re Anwar Kabir Shawon, No. A200

14   817 282 (B.I.A. Feb. 19, 2015), aff’g No. A200 817 282 (Immig.

15   Ct.   N.Y.   City    Feb.       27,   2013).         We   assume   the   parties’

16   familiarity with the underlying facts and procedural history

17   in this case.

18         We have reviewed the IJ’s decision as modified by the BIA.

19   See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522

20   (2d Cir. 2005).       The applicable standards of review are well

21   established.        See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.

22   Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).                        For asylum

23   applications like Shawon’s, governed by the REAL ID Act, the

24   agency may, “[c]onsidering the totality of the circumstances,”


                                              2
1    base a credibility finding on inconsistencies in an applicant’s

2    statements    and    other    record       evidence    “without       regard   to

3    whether” they go “to the heart of the applicant’s claim.”

4    8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.

5    In this case, the agency’s adverse credibility finding is

6    supported by substantial evidence.

7           The   BIA     affirmed     the       IJ’s      adverse     credibility

8    determination on the basis of a single discrepancy between

9    Shawon’s supplemental statement and his testimony.                     Shawon’s

10   statement reported that Awami League members beat his family

11   as well as himself during an attack on their home in January

12   2009, but he testified that his family was not harmed.                     When

13   confronted with this inconsistency, Shawon failed to explain

14   it, merely reiterating that his family was unharmed.

15          The agency may base its adverse credibility determination

16   on any inconsistency in the record, no matter how minor, as long

17   as “the totality of the circumstances” supports the adverse

18   credibility finding.         Xiu Xia Lin, 534 F.3d at 163-64.            We have

19   upheld an adverse credibility finding made under circumstances

20   similar to Shawon’s.         See Majidi v. Gonzales, 430 F.3d 77 (2d

21   Cir.    2005).     Where   the   agency       “identifie[s]       a    material

22   inconsistency in an aspect of petitioner’s story that served



                                            3
1    as an example of the very persecution from which he sought

2    asylum,” the agency’s adverse credibility determination is

3    supported by substantial evidence.              Id. at 81.

4          Shawon’s   case      is    not   distinguishable       from    Majidi:

5    Shawon’s account differed from his testimony, and he did not

6    try   to   explain   the    inconsistency         when   prompted.      This

7    inconsistency concerned “an aspect of [Shawon’s] story that

8    served as an example of the very persecution from which he sought

9    asylum.”    Id.; see also Xian Tuan Ye v. DHS, 446 F.3d 289, 294-95

10   (2d Cir. 2006).         Under these circumstances, the agency’s

11   adverse credibility determination is supported by substantial

12   evidence.    8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534

13   F.3d at 167.     Accordingly, the agency did not err in denying

14   asylum, withholding of removal, and CAT relief because all three

15   forms of relief relied on Shawon’s credibility, and were based

16   on the same factual predicate.             Paul v. Gonzales, 444 F.3d 148,

17   156-57 (2d Cir. 2006).

18         For the foregoing reasons, the petition for review is

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

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

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

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



                                            4
1   in this petition is DENIED in accordance with Federal Rule of

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

3   34.1(b).

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




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