         12-1911
         Razik v. Holder
                                                                                        BIA
                                                                                 Mulligan, IJ
                                                                               A088 524 528
                            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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 1st day of November, two thousand thirteen.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                GUIDO CALABRESI,
 9                PETER W. HALL,
10                     Circuit Judges.
11       _____________________________________
12
13       MOHAMED RAISUDEEN MOHAMED RAZIK,
14                Petitioner,
15
16                         v.                                   12-1911
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Joshua Bardavid, New York, NY.
24
25       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
26                                     Attorney General; Stephen J. Flynn,
27                                     Assistant Director; Robert M.
28                                     Stalzer, Trial Attorney, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice,
31                                     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

 4   is DENIED.

 5       Mohamed Raisudeen Mohamed Razik, a native and citizen

 6   of Sri Lanka, seeks review of an April 24, 2012, decision of

 7   the BIA affirming the August 17, 2010, decision of

 8   Immigration Judge (“IJ”) Thomas Mulligan, which denied his

 9   application for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”).   In re Mohamed

11   Raisudeen Mohamed Razik, No. A088 524 528 (B.I.A. Apr. 24,

12   2012), aff’g No. A088 524 528 (Immig. Ct. N.Y. City Aug. 17,

13   2010).   We assume the parties’ familiarity with the

14   underlying facts and procedural history in this case.

15       Under the circumstances of this case, we have reviewed

16   the decisions of both the IJ and the BIA.   See Yun-Zui Guan

17   v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam).

18   The applicable standards of review are well-established.

19   See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v.

20   Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam).

21       For applications such as Razik’s, governed by the

22   amendments made to the Immigration and Nationality Act by

23   the REAL ID Act of 2005, the agency may, “[c]onsidering the

                                   2
 1   totality of the circumstances,” base a credibility finding

 2   on the plausibility of an applicant’s account, as well as

 3   inconsistencies in his statements, without regard to whether

 4   they go “to the heart of the applicant’s claim.”     8 U.S.C.

 5   §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); see Xiu Xia Lin v.

 6   Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam).     We

 7   “defer [ ] to an IJ’s credibility determination unless, from

 8   the totality of the circumstances, it is plain that no

 9   reasonable fact-finder could make such an adverse

10   credibility ruling.”   Xiu Xia Lin, 534 F.3d at 167.    In this

11   case, the agency reasonably based its adverse credibility

12   finding on Razik’s negative demeanor, the lack of

13   credibility of his claim that the Sri Lankan army suspected

14   him of supporting the Liberation Tigers of Tamil Eelam

15   (“LTTE”), and a failure to provide reasonably available

16   corroborating evidence.

17       The IJ’s observations regarding Razik’s demeanor while

18   testifying supports the agency’s adverse credibility

19   determination.   We accord particular deference to the trier

20   of fact’s assessment of demeanor, as he was in the best

21   position to observe Razik’s manner while testifying.     See Tu

22   Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir. 2006).     During


                                   3
 1   the merits hearing, the IJ carefully observed Razik’s

 2   testimony throughout direct and cross-examination and found

 3   Razik’s overall demeanor negative throughout, in part due to

 4   his persistent, abnormally high anxiety, and his periodic

 5   glances at the IJ, which the IJ interpreted as attempts to

 6   gauge the reaction to the testimony.    The IJ specifically

 7   underscored Razik’s difficulty providing details and lack of

 8   a natural flow when describing LTTE members’ damaging

 9   shelving in his uncle’s shop, and his contrived effort to

10   convey the appearance of sadness by lowering his head and

11   repeatedly wiping his face.    While Razik takes issue with

12   the IJ’s characterization of his demeanor as insincere,

13   where, as here, the agency’s inference “is tethered to the

14   evidentiary record, [this Court] will accord deference to

15   the finding.”   Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d

16   Cir. 2007); see also Tu Lin, 446 F.3d at 400-01.

17       Razik also argues that the IJ should have given him

18   notice of the demeanor issue and an opportunity to explain.

19   This argument also fails.     Razik relies on Zhi Wei Pang v.

20   Bureau of Citizenship and Immigration Services, 448 F.3d

21   102, 107 (2d Cir. 2006), and Ming Shi Xue v. BIA, 439 F.3d

22   111, 118 (2d Cir. 2006) to support his contention, but these


                                     4
 1   cases require IJs to inform petitioners about

 2   non-self-evident discrepancies in their testimony so that

 3   they may offer explanations for apparent inconsistencies, an

 4   obligation that does not extend to an IJ’s demeanor

 5   findings.   See 448 F.3d at 107; 439 F.3d at 118.

 6       The BIA also properly declined to consider the

 7   affidavit submitted by counsel on appeal.      The BIA reviews

 8   only the record before it and generally may not supplement

 9   the record with new evidence.       See Belotaja v. Gonzales, 484

10   F.3d 619, 624 (2d Cir. 2007) (citing 8 C.F.R.

11   § 1003.1(d)(3)(iv)).    Razik relies on Kulhawik v. Holder, in

12   which we determined that the BIA erred when it refused to

13   consider an affidavit submitted by counsel before the IJ.

14   571 F.3d 296, 298 (2d Cir. 2009) (per curiam).      In the

15   present case, however, Razik’s counsel submitted his

16   affidavit before the BIA, and not the IJ.      Hence, the ruling

17   in Belotaja controls.

18       The agency also reasonably based its adverse

19   credibility determination, in part, on Razik’s failure to

20   credibly explain why he had amended his application to state

21   that he feared persecution from the Sri Lankan army.         See

22   Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005)

23   (holding that an agency need not credit an applicant’s
                                     5
 1   explanations for inconsistencies in the record unless those

 2   explanations would compel a reasonable fact-finder to do

 3   so); see also 8 U.S.C. § 1158(b)(1)(B)(iii) (noting that the

 4   agency may consider the inherent plausibility of the

 5   applicant’s account in assessing credibility); Xiu Xia Lin,

 6   534 F.3d at 166.   Although Razik contended that he amended

 7   his application because the army had begun to arrest all

 8   perceived LTTE supporters following LTTE’s defeat, the IJ

 9   reasonably found this explanation suspicious and incredible

10   because the army had not harassed his uncle, who paid the

11   protection money and whose name appeared on the LTTE

12   receipts.   See Majidi, 430 F.3d at 80-81; see also 8 U.S.C.

13   § 1158(b)(1)(B)(iii).

14       Having called Razik’s credibility into question, the IJ

15   did not err in finding his credibility further undermined by

16   the absence of corroborative evidence.   See 8 U.S.C.

17   § 1158(b)(1)(B)(ii); Biao Yang v. Gonzales, 496 F.3d 268,

18   273 (2d Cir. 2007) (per curiam).   Although Razik submitted

19   letters from his family and friends, the agency reasonably

20   accorded them little weight due to the inability to

21   cross-examine their authors.   See Matter of H–L–H & Z–Y–Z–,

22   25 I. & N. Dec. 209, 215 (B.I.A. 2010), rev'd on other

23   grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir.
                                    6
 1   2012).     In addition, the agency reasonably noted that the

 2   scar on Razik’s face, without more, did not demonstrate that

 3   a LTTE cadre assaulted him.     See Xiao Ji Chen v. U.S. Dep’t

 4   of Justice, 471 F.3d 315, 342 (2d Cir. 2006).     And, the

 5   agency did not err in finding that Razik’s return to Sri

 6   Lanka for three weeks to conduct a financial transaction

 7   when he claimed to fear for his life, undermined his

 8   credibility.     See Kone v. Holder, 596 F.3d 141, 150-51 (2d

 9   Cir. 2010).

10          By examining these factors in conjunction with the

11   negative demeanor findings, the agency sufficiently examined

12   the totality of the circumstances to reach its adverse

13   credibility determination.     See Xiu Xia Lin, 534 F.3d at

14   167.     Nor does the record support Razik’s assertion that the

15   agency did not evaluate the totality of the circumstances

16   and violated his due process rights by truncating his

17   testimony.     Throughout Razik’s testimony, the IJ repeatedly

18   asked him to provide greater detail and offered specific

19   examples of the types of details he sought.     More tellingly,

20   Razik’s counsel explicitly declined an opportunity for

21   redirect, indicating that Razik had nothing more to add to

22   his case at that time.

23

                                     7
 1       The adverse credibility determination in this case

 2   necessarily precluded Razik’s success on his claims for

 3   asylum, withholding of removal, and CAT relief, as those

 4   claims shared the same factual predicate.    See Paul v.

 5   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v.

 6   U.S. Dep't of Justice, 426 F.3d 520, 523 (2d Cir. 2005).

 7       For the foregoing reasons, the petition for review is

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

 9   removal that the Court previously granted in this petition

10   is VACATED, and any pending motion for a stay of removal in

11   this petition is DISMISSED as moot.    Any pending request for

12   oral argument in this petition is DENIED in accordance with

13   Federal Rule of Appellate Procedure 34(a)(2), and Second

14   Circuit Local Rule 34.1(b).

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




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