         10-2430-ag
         Islam-Mia v. Holder
                                                                                       BIA
                                                                                Schoppert, IJ
                                                                               A088 053 104
                                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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 15th day of September, two thousand eleven.
 5
 6       PRESENT:
 7                ROBERT A. KATZMANN,
 8                BARRINGTON D. PARKER,
 9                REENA RAGGI,
10                     Circuit Judges.
11       _______________________________________
12
13       MUHAMED SHAHIDUL ISLAM-MIA,
14                Petitioner,
15
16                         v.                                   10-2430-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                 Thomas Vincent Massucci, New York,
24                                       New York.
25
26       FOR RESPONDENT:                 Tony West, Assistant Attorney
27                                       General; Anthony P. Nicastro, Senior
28                                       Litigation Counsel; Sabatino F. Leo,
29                                       Trial Attorney, Office of
30                                       Immigration Litigation, Civil
31                                       Division, United States Department
32                                       of Justice, Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

 2   decision of the Board of Immigration Appeals (“BIA”), it is

 3   hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

 4   review is DENIED.

 5       Petitioner Muhamed Shahidul Islam-Mia, a native and

 6   citizen of the People’s Republic of China, seeks review of a

 7   May 21, 2010, order of the BIA, affirming the May 28, 2008,

 8   decision of Immigration Judge (“IJ”) Douglas B. Schoppert,

 9   denying his application for asylum, withholding of removal,

10   and relief under the Convention Against Torture (“CAT”).     In

11   re Muhamed Shahidul Islam-Mia, No. A088 053 104 (B.I.A. May

12   21, 2010), aff’g No. A088 053 104 (Immig. Ct. N.Y. City May

13   28, 2008).   We assume the parties’ familiarity with the

14   underlying facts and procedural history of the case.

15       Under the circumstances of this case, we have reviewed

16   both the IJ’s and the BIA’s decisions.   See Yun-Zui Guan v.

17   Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).    The applicable

18   standards of review are well-established.     See 8 U.S.C.

19   § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

20   (2d Cir. 2009).

21       Substantial evidence supports the IJ’s adverse

22   credibility determination.   As the IJ found: (1) although


                                   2
 1   Islam-Mia testified that, in 2003, he was hung upside down

 2   and had hot water poured into his nose, those details were

 3   omitted in his asylum application; (2) although Islam-Mia

 4   testified that he still suffered health problems as a result

 5   of the 2003 incident, the statement from his physician did

 6   not indicate any such problems; and (3) although Islam-Mia

 7   testified that he was severely beaten all over his body and

 8   that his face was covered in blood after he was beaten,

 9   photographs taken after the beating while he was detained

10   did not depict any visible signs of scarring, blood, or

11   bruises on his face and body.       Because the agency was

12   entitled to rely on any discrepancy in finding Islam-Mia not

13   credible, the IJ’s reliance on these inconsistencies was not

14   improper.   See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu

15   Xia Lin v. Mukasey, 534 F.3d 162, 166-67 n.3 (2d Cir. 2008)

16   (noting that inconsistencies and omissions are “functionally

17   equivalent”).

18       The IJ also reasonably found Islam-Mia’s testimony

19   implausible.    With regard to the photographs that Islam-Mia

20   submitted, the IJ found implausible that: (1) someone would

21   have been allowed to take photographs of Islam-Mia while he

22   was detained; and (2) the photographs were taken after


                                     3
 1   Islam-Mia was severely beaten and tortured.    The IJ’s

 2   implausibility finding was not impermissibly speculative,

 3   given that Islam-Mia could not explain why the photographs

 4   did not depict any blood or marks on his body.     See Wensheng

 5   Yan v. Mukasey, 509 F.3d 63, 66-67 (2d Cir. 2007) (finding

 6   that so long as an IJ’s finding is “tethered to record

 7   evidence, and there is nothing else in the record from which

 8   a firm conviction of error could properly be derived,” the

 9   Court will not disturb the inherent implausibility finding).

10   Moreover, there is no merit to Islam-Mia’s argument that he

11   was not provided the opportunity to explain his implausible

12   testimony, as he was asked why the photographs did not

13   depict any blood or marks on his body.    Moreover, Islam-Mia

14   does not challenge, and therefore has waived any challenge

15   to the IJ’s implausibility finding regarding the warrant for

16   his arrest.     See Yueqing Zhang v. Gonzales, 426 F.3d 540,

17   541 n.1, 545 n.7 (2d Cir. 2005) (holding that issues not

18   sufficiently argued in the briefs are considered waived and

19   normally will not be addressed on appeal).

20       Lastly, there is no merit to Islam-Mia’s argument that

21   the agency erred in giving diminished weight to the evidence

22   he submitted.     See Xiao Ji Chen v. U.S. Dep’t of Justice,


                                     4
 1   471 F.3d 315, 342 (2d Cir. 2006) (finding that the weight

 2   afforded to the applicant’s evidence in immigration

 3   proceedings lies largely within the discretion of the

 4   agency) (holding that this Court generally accords deference

 5   to the agency’s evaluation of documentary evidence).

 6       Accordingly, considering the totality of the

 7   circumstances and all relevant factors, the IJ’s credibility

 8   determination was supported by substantial evidence.     See

 9   8 U.S.C. § 1158(b)(1)(B)(iii).    Because the only evidence of

10   a threat to Islam-Mia’s life or freedom depended upon his

11   credibility, the adverse credibility determination in this

12   case necessarily precludes success on his claim for asylum

13   and withholding of removal, as both claims were based on the

14   same factual predicate.   See Paul v. Gonzales, 444 F.3d 148,

15   156 (2d Cir. 2006).   Islam-Mia has not challenged the

16   agency’s denial of his CAT claim.

17       For the foregoing reasons, the petition for review is

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

19   removal that the Court previously granted in this petition

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

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

22   oral argument in this petition is DENIED in accordance with


                                   5
1   Federal Rule of Appellate Procedure 34(a)(2), and Second

2   Circuit Local Rule 34.1(b).

3                                 FOR THE COURT:
4                                 Catherine O’Hagan Wolfe, Clerk
5
6




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