     14-4277
     Faruk v. Lynch
                                                                                         BIA
                                                                               Christensen, IJ
                                                                               A087 998 865
                           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   13th day of September, two thousand sixteen.
 5
 6   PRESENT:
 7            PIERRE N. LEVAL,
 8            REENA RAGGI,
 9            RICHARD C. WESLEY,
10                 Circuit Judges.
11   _____________________________________
12
13   OMAR FARUK,
14            Petitioner,
15
16                    v.                                             14-4277
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Salim Sheikh, New York, New York.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; Ernesto
27                                       H. Molina, Jr., Deputy Director;
28                                       Gladys M. Steffens Guzman, Trial
29                                       Attorney; Thelma A. Lizama, Law
30                                       Clerk, Office of Immigration
31                                       Litigation, United States
32                                       Department of Justice, Washington,
33                                       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 is

4    DENIED.

5           Petitioner Omar Faruk, a native and citizen of Bangladesh,

6    seeks review of an October 17, 2014, decision of the BIA

7    affirming an October 24, 2012, decision of an Immigration Judge

8    (“IJ”) denying Faruk’s application for asylum, withholding of

9    removal, and relief under the Convention Against Torture

10   (“CAT”).      In re Omar Faruk, No. A087 998 865 (B.I.A. Oct. 17,

11   2014), aff’g No. A087 998 865 (Immig. Ct. N.Y. City Oct. 24,

12   2012).    We assume the parties’ familiarity with the underlying

13   facts and procedural history in this case.

14          Under the circumstances of this case, we have considered

15   both    the   IJ’s   and   the    BIA’s   opinions   “for   the   sake   of

16   completeness.”       Wangchuck v. Dep’t of Homeland Sec., 448 F.3d

17   524, 528 (2d Cir. 2006).           The applicable standards of review

18   are well established.            See 8 U.S.C. § 1252(b)(4)(B); Yanqin

19   Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

20          Under the REAL ID Act of 2005, the agency may, in light of

21   “the     totality    of    the     circumstances,”   base    an   adverse

22   credibility determination on an asylum applicant’s “demeanor,

23   candor, or responsiveness,” the plausibility of his account,

                                           2
1    and inconsistencies in his statements, “without regard to

2    whether”     those     inconsistencies      go   “to   the    heart    of    the

3    applicant’s claim.”        8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin

4    v. Mukasey, 534 F.3d 162, 165 (2d Cir. 2008).                       Under the

5    “substantial evidence” standard of review, “we defer . . . to

6    an IJ’s credibility determination unless, from the totality of

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

8    could make such an adverse credibility ruling.”                 Xiu Xia Lin,

9    534 F.3d at 167.

10          The   adverse    credibility       determination      here    rests    on

11   substantial evidence.        The agency justifiably relied on the

12   record of Faruk’s credible fear interview.                   We have advised

13   that     “adverse       credibility        determinations           based     on

14   ‘discrepancies’ with a credible fear interview should be

15   examined with care to ensure that they are not arbitrary.”                  Ming

16   Zhang v. Holder, 585 F.3d 715, 725 (2d Cir. 2009) (identifying

17   a hallmark of reliability as whether the applicant was asked

18   questions “designed to elicit a potential basis for an asylum

19   claim” (internal quotation marks omitted)).                    We have also

20   explained that while the agency “should not overlook complaints

21   of coercion altogether, an alien’s mere recitation that he was

22   nervous or felt pressured during an airport interview will not

23   automatically prevent the IJ or BIA from relying on statements

                                           3
1    in   such   interviews       when         making        adverse   credibility

2    determinations.”       Yun-Zui Guan v. Gonzales, 432 F.3d 391, 398

3    n.6 (2d Cir. 2005) (internal citation omitted)

4         Here, Faruk did not object to the admission of the credible

5    fear interview record into evidence.                    The record bore the

6    hallmarks of reliability: the interview was conducted through

7    a Bengali interpreter, focused on why Faruk feared returning

8    to Bangladesh, and was memorialized in a typewritten document.

9    Faruk testified that he was confused and in an improper mental

10   state   during   the    interview,        but     did    not   claim   that   he

11   misunderstood any of the questions or the interpreter.

12        The IJ’s determination that the record eroded Faruk’s

13   credibility was sound: each of the inconsistencies identified

14   by the IJ is supported by the record.               The IJ also reasonably

15   relied on the inconsistency between the affidavit of Faruk’s

16   wife, who said nothing about the attack, and Faruk’s testimony

17   that she was present and living at the house when it was

18   attacked.    When      pressed   on       these    inconsistencies,      Faruk

19   professed his confusion at the credible fear interview.                       The

20   agency was not compelled to credit this explanation.                    Majidi

21   v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (stating that the

22   agency is not required to credit an explanation that is merely

23   plausible or possible); Yun-Zui Guan, 432 F.3d at 398 n.6.

                                           4
1        The IJ also reasonably relied on Faruk’s failure to mention

2    three    attacks    during    his   credible   fear   interview.   “An

3    inconsistency and an omission are,” for the purposes of a

4    credibility determination, “functionally equivalent.”              Xiu

5    Xia Lin, 534 F.3d at 166 n.3.             Here, the omissions were

6    significant.       At the hearing, Faruk described three additional

7    attacks, one in which he was kidnapped, held overnight, beaten,

8    and released only after his family paid ransom, and another in

9    which a fellow BNP member was beaten to death.              The IJ was

10   entitled to “rely on the commonsense observation that it is

11   inconsistent for a petitioner to respond to the same question

12   about the nature of his asylum claim with two entirely different

13   responses.”       Yun-Zui Guan, 432 F.3d at 398.

14       Faruk challenges the denial of CAT relief.               Given the

15   omissions and inconsistencies that cast doubt on whether the

16   alleged persecution occurred, the totality of the circumstances

17   supports    the    agency’s    adverse   credibility    determination.

18   Faruk’s applications for asylum, withholding of removal, and

19   CAT relief were based on the same factual predicate, and so the

20   adverse credibility determination was dispositive as to all

21   three.     See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.

22   2006).

23       Faruk’s additional arguments fail.            One is that the IJ

                                          5
1    should have inferred that he did not trust the asylum officer

2    and may have thought it unnecessary to discuss all of the

3    incidents.     “An attorney’s unsworn statements in a brief are

4    not evidence.”       Kulhawik v. Holder, 571 F.3d 296, 298 (2d Cir.

5    2009).      Moreover, had Faruk so testified, the IJ was not

6    obligated to credit that explanation, which did not account for

7    the vast differences between the credible fear interview and

8    the asylum application.           Majidi, 430 F.3d at 80.

9          Faruk posits that the IJ ignored his documentary evidence.

10   Not   so.      The   IJ   found    that   Faruk’s   documents     did   not

11   rehabilitate his credibility because the affidavits from people

12   in Bangladesh were submitted without identification, came from

13   people      unavailable    for     cross-examination,     and    actually

14   conflicted with Faruk’s problematic testimony.             The documents

15   suffered     other    inadequacies:       a   medical   record   was    not

16   contemporaneous with Faruk’s treatment, a letter from a BNP

17   official relied on hearsay, and a report from a U.S. doctor was

18   based on secondhand information supplied by Faruk.               We “defer

19   to the agency’s determination of the weight afforded to an

20   alien’s documentary evidence.”            Y.C. v. Holder, 741 F.3d 324,

21   334 (2d Cir. 2013).

22         Faruk also appears to seek a discretionary grant of asylum

23   notwithstanding the adverse credibility determination.

                                           6
1    Presumably he refers to the fact that once an alien establishes

2    that he “is a ‘refugee’ within the meaning of the [INA],” and

3    therefore eligible for asylum, “the decision whether to grant

4    a particular application is still within the discretion of the

5    Attorney General.”     Abankwah v. INS, 185 F.3d 18, 22 (2d Cir.

6    1999).     This principle is inapplicable to Faruk: because of the

7    adverse credibility determination, he was ineligible for

8    asylum.     See Wu Zheng Huang v. INS, 436 F.3d 89, 95-97 (2d Cir.

9    2006).

10       For the foregoing reasons, the petition for review is

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

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

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

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

15   in this petition is DENIED in accordance with Federal Rule of

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

17   34.1(b).

18                                  FOR THE COURT:
19                                  Catherine O=Hagan Wolfe, Clerk




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