    13-4583
    Rahman v. Lynch
                                                                                       BIA
                                                                                 Abrams, IJ
                                                                               A200 026 259
                           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.

         At a stated term of the United States Court of Appeals for
    the Second Circuit, held at the Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the
    15th day of December, two thousand fifteen.

    PRESENT:
             PETER W. HALL,
             DEBRA ANN LIVINGSTON,
             SUSAN L. CARNEY,
                  Circuit Judges.
    _____________________________________

    SUZON RAHMAN,
             Petitioner,

                      v.
                                                                            13-4583
                                                                            NAC
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________


    FOR PETITIONER:                      Salim Sheikh, New York, New York.

    FOR RESPONDENT:                      Joyce R. Branda, Acting Assistant
                                         Attorney General; Terri J. Scadron,
                                         Assistant Director; Richard
                                Zanfardino, Trial Attorney, United
                                States Department of Justice, Civil
                                Division, Office of Immigration
                                Litigation, 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.

    Petitioner       Suzon    Rahman,    a    native   and    citizen   of

Bangladesh, seeks review of a November 4, 2013, decision of the

BIA affirming the November 18, 2011, decision of an Immigration

Judge     (“IJ”)    denying   Rahman’s       application     for   asylum,

withholding of removal, and relief under the Convention Against

Torture (“CAT”).      In re Suzon Rahman, No. A200 026 259 (B.I.A.

Nov. 4, 2013), aff’g No. A200 026 259 (Immig. Ct. N.Y. City Nov.

18, 2011).         We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

    Under the circumstances of this case, we have reviewed the

IJ’s decision as modified by the BIA.            Xue Hong Yang v. U.S.

Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).                     The

applicable standards of review are well established.                See 8

U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

165-66 (2d Cir. 2008) (per curiam).
    For asylum applications, like Rahman’s, governed by the

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

circumstances,”     base   a   credibility    finding   on   an   asylum

applicant’s    “demeanor,      candor,   or    responsiveness,”        the

plausibility   of   his    account,    and   inconsistencies      in   his

statements, “without regard to whether” they go “to the heart

of the applicant’s claim,” so long as they reasonably support

an inference that the applicant is not credible.               8 U.S.C.

§ 1158(b)(1)(B)(iii); see Xiu Xia Lin, 534 F.3d at 167.                “We

defer therefore to an IJ’s credibility determination unless,

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

reasonable fact-finder could make such an adverse credibility

ruling.”   Xiu Xia Lin, 534 F.3d at 167.        Substantial evidence

supports the IJ’s finding that Rahman was not credible.

    Here, the IJ found that Rahman testified as though he

memorized the personal statement he filed with his application,

but gave problematic testimony when answering questions that

deviated from the contents of that statement.                The record

supports the IJ’s observations.          A fact-finder who assesses

testimony together with witness demeanor is in the best position

to discern “whether a witness who hesitated in a response was

                                   3
nevertheless attempting truthfully to recount what he recalled

of key events or struggling to remember the lines of a carefully

crafted ‘script.’”     Li Hua Lin v. U.S. Dep’t of Justice, 453

F.3d 99, 109 (2d Cir. 2006).          Accordingly, we defer to the

agency’s demeanor finding.

    This   demeanor    finding   is    bolstered   by   a   number   of

inconsistencies, which substantiate the IJ’s finding that

Rahman had difficulty testifying about matters outside his

personal statement.     Id. (“We can be still more confident in

our review of observations about an applicant’s demeanor where,

as here, they are supported by specific examples of inconsistent

testimony.”).         The   IJ   properly     relied    on    several

inconsistencies between Rahman’s testimony and that of his

U.S.-citizen uncle, Mohammad Minule Islam.         Rahman testified

that Islam was his maternal uncle, but Islam testified that he

was Rahman’s paternal uncle.      To explain this, Rahman argues

before this Court that the IJ confused the Bengali word “mama,”

meaning maternal uncle, with “kaka,” meaning paternal uncle,

but the translator specified that Rahman began saying “kaka”

only after he was confronted about the discrepancy.                  In

addition, Rahman testified that Islam’s father’s name was

                                 4
Mohammad Galil, but Islam testified that his father’s name was

Shariful Islam.     The IJ was not required to credit Rahman’s

explanation, that “Galil” was a nickname, because Islam had

never heard of that name.     Majidi v. Gonzales, 430 F.3d 77,

80-81 (2d Cir. 2005) (explaining that agency need not credit

explanations   for    inconsistent    testimony   unless   those

explanations would compel a reasonable fact-finder to do so).

Additionally, Islam testified that he returned to Bangladesh

in early 2004 when his father died.   But Rahman testified that

Islam’s father passed away “a long time back” when he was “very

young.”   In 2004, Rahman would have been 19 or 20 years old.

The agency was not required to accept Rahman’s explanation that

he misunderstood.    Majidi, 430 F.3d at 80-81.

    The IJ’s adverse credibility determination is further

supported by inconsistencies between Rahman’s statements and

a doctor’s report he submitted to substantiate injuries he

allegedly sustained during a kidnapping.      Rahman’s personal

statement reflected that his left hand was smashed and “blood

gushed” from it, but the doctor’s report did not mention any

hand injury.   Moreover, the IJ observed Rahman pointing to a

scar in the middle of his forehead, but the doctor’s report

                                5
indicates that Rahman suffered injuries on both sides of his

forehead.    As we have recognized, the IJ is in the best position

to observe the witness and evaluate credibility.           See Jin Chen

v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d Cir. 2005).         The

record also supports the IJ’s finding of a minor inconsistency

regarding Rahman’s passport; Rahman testified first that the

smuggler confiscated the passport, but later testified that he

lost it.

     The IJ also reasonably relied on Rahman’s failure to

provide corroborating evidence.        See Biao Yang v. Gonzales, 496

F.3d 268, 273 (2d Cir. 2007) (per curiam) (finding that

applicant’s failure to corroborate testimony may bear on

credibility).    Contrary to Rahman’s argument, the IJ did not

ignore any evidence; rather, the IJ gave it diminished weight.

The IJ’s decision to give diminished weight to a letter from

Rahman’s father and statements from Jatiya Party members was

reasonable    because   neither       direct   testimony    nor   sworn

statements were before the IJ, and in general, the weight to

afford evidence is within the agency’s discretion.            See Xiao

Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.

2006); In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (BIA 2010),

                                  6
rev’d on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130

(2d Cir. 2012).      The IJ also reasonably gave diminished weight

to a psychologist’s report because it largely reiterated

Rahman’s account of past persecution.                See Xiao Ji Chen, 471

F.3d at 342.

    Given      the     agency’s       findings       regarding     demeanor,

inconsistencies, and lack of corroboration, the “totality of

circumstances”       supports   the       agency’s    adverse    credibility

determination.        Xiu Xia Lin, 534 F.3d at 167.                 Rahman’s

argument, that the IJ erred by relying on inconsistencies

immaterial to his claim, is misguided because the REAL ID Act

allows the agency to base a credibility finding on any

inconsistency, without regard to whether it goes “to the heart

of the applicant’s claim.”        8 U.S.C. § 1158(b)(1)(B)(iii).         As

all of Rahman’s claims share the same factual predicate, the

adverse credibility determination is dispositive of asylum,

withholding of removal, and CAT relief.              Paul v. Gonzales, 444

F.3d 148, 156-57 (2d Cir. 2006).

    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,

                                      7
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

34.1(b).

                            FOR THE COURT:
                            Catherine O=Hagan Wolfe, Clerk




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