09-0527-ag
Uddin v. Holder
                                                                                   BIA
                                                                            DeFonzo, IJ
                                                                           A098 796 302
                   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 .


     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 21 st day of January, two thousand ten.

PRESENT:
         JON O. NEWMAN,
         ROBERT D. SACK,
         DEBRA ANN LIVINGSTON,
                  Circuit Judges.
_______________________________________

JAMAL UDDIN,
         Petitioner,

                  v.                                                  09-0527-ag
                                                                             NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
         Respondent.
_______________________________________

FOR PETITIONER:                 Howard M. Rosengarten, New York, N.Y.

FOR RESPONDENT:                 Tony West, Assistant Attorney General;
                                Anthony N. Norwood, Senior Litigation
                                Counsel; Surell Brady, 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.

     Jamal Uddin, a native and citizen of Bangladesh, seeks
review of a January 13, 2009 order of the BIA, affirming the
July 12, 2007 decision of Immigration Judge (“IJ”) Paul A.
DeFonzo, which denied his application for asylum, withholding
of removal, and relief under the Convention Against Torture
(“CAT”). In re Jamal Uddin, No. A098 796 302 (B.I.A. Jan. 13,
2009), aff’g No. A098 796 302 (Immig. Ct. N.Y. City July 12,
2007). We assume the parties’ familiarity with the underlying
facts and procedural history in this case.

     In this case, this Court reviews the decision of the IJ
as supplemented by the BIA.   See Yan Chen v. Gonzales, 417
F.3d 268, 271 (2d Cir. 2005). We review the agency’s factual
findings, including adverse credibility findings, under the
substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see
also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.
2008). 1

     Substantial   evidence   supports    the  IJ’s   adverse
credibility determination, which was based, in part, on
inconsistencies between Uddin’s hearing testimony and his
asylum application. See Xiu Xia Lin, 534 F.3d at 165-66; cf.
Pavlova v. INS, 441 F.3d 82, 90 (2d Cir. 2006). No reasonable
adjudicator would be compelled to credit Uddin’s explanations
for the inconsistencies that it “slipped his mind” or was a
“mistake.”   See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d
Cir. 2005).

     The   IJ   also   reasonably    relied   on   additional
inconsistencies between Uddin’s hearing testimony and his
credible fear interview. We have recently held that where the
record of a credible fear interview displays the hallmarks of
reliability, it can be considered in assessing an alien’s
credibility.   Ming Zhang v. Holder, No. 07-0327, 2009 WL
3489036, at 6 (2d Cir. Oct. 30, 2009).     Here, although the
record of the credible fear interview was a summary, the IJ


      1
        The asylum application in this case is governed by the amendments made to
the Immigration and Nationality Act by the REAL ID Act of 2005, Pub. L. No. 109-
13, 119 Stat. 231 (2005). See Title I, § 101(a)(3) of the Act, 119 Stat. 231, 303
(amending 8 U.S.C. § 1158); see also Xiu Xia Lin, 534 F.3d at 165.

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reasonably afforded it some weight, particularly because Uddin
admitted that his testimony was inconsistent with the dates
that he told the asylum officer during his credible fear
interview. See Ramsameachire v. Ashcroft, 357 F.3d 169, 179-
80 (2d Cir. 2004).

     While Uddin argues that the IJ erred by giving limited
weight to his proffered evidence, the weight afforded evidence
“lies largely within the discretion of the IJ,” Xiao Ji Chen
v. U.S. Dep’t of Justice, 471 F.3d 315, 341-42 (2d Cir. 2006),
and the agency need not “expressly parse or refute on the
record each individual argument or piece of evidence offered
by the petitioner.” Wei Guang Wang v. BIA, 437 F.3d 270, 275
(2d Cir. 2006). It does appear, however, that the IJ may have
been mistaken in finding that none of the letters that Uddin
submitted “makes specific reference to [Uddin] having been
assaulted on July 24, 2004, or on any other date.” See JA 12.
The   letter  from   a  physician,   reporting  on   treatment
administered to Uddin on July 24, 2004, states “injuries
caused by sharp weapon and assault in origin.” See JA 215,
Exhibit 9A. The reasonable inference is that treatment
administered on July 24 was for an assault that occurred on
that date. Remand to correct this apparent mistake would be
futile, however, as we can confidently predict that the agency
would   make  the  same   decision   based  on  the   numerous
inconsistencies on which the agency reasonably relied.     See
Xiao J. Chen, 471 F.3d at 339.

     Thus, the agency’s denial of Uddin’s application for
asylum was proper.     See 8 U.S.C. § 1158(b)(1)(B)(iii).
Moreover, because Uddin based his claims for withholding of
removal and CAT relief on the same factual predicate as his
asylum claim, those claims necessarily fail.    See Paul v.
Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v.
U.S. Dep’t. of Justice, 426 F.3d 520, 523 (2d Cir. 2005).

     Finally, Uddin argues that the IJ erred in finding that
he failed to provide evidence that he qualified for voluntary
departure; however, because this argument merely quarrels with
the IJ’s fact-finding, we lack jurisdiction to review it. See
Carcamo v. U.S. Dep’t of Justice, 498 F.3d 94, 97 (2d Cir.
2007) (citing 8 U.S.C. §§ 1229c(f), 1252(a)(2)(B)(I)).



                             -3-
     For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument in
this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34(b).

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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