     15-143
     Yousuf v. Lynch
                                                                                BIA
                                                                            Segal, IJ
                                                                        A201 293 608
                            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
 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 4th day of October, two thousand sixteen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            DENNY CHIN,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   MOHAMMED YOUSUF,
14            Petitioner,
15
16                     v.                                      15-143
17                                                             NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Salim Sheikh, New York, New
24                                       York.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal
27                                       Deputy Assistant Attorney
28                                       General; Douglas E. Ginsburg,
29                                       Assistant Director; Deitz P.
30                                       Lefort, Trial Attorney, Office
31                                       of Immigration Litigation,
32                                       United States Department of
33                                       Justice, 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          Petitioner Mohammed Yousuf, a native and citizen of

 6   Bangladesh, seeks review of a December 16, 2014, decision of

 7   the    BIA,    affirming       a   February       6,    2013,   decision      of    an

 8   Immigration Judge (“IJ”) denying Yousuf’s application for

 9   asylum,       withholding      of     removal,         and    relief      under    the

10   Convention Against Torture (“CAT”).                     In re Mohammed Yousuf,

11   No. A201 293 608 (B.I.A. Dec. 16, 2014), aff’g No. A201 293

12   608 (Immig. Ct. N.Y. City Feb. 6, 2013).                            We assume the

13   parties’       familiarity          with       the     underlying      facts       and

14   procedural history in this case.

15          Under the circumstances of this case, we have reviewed

16   both    the     BIA’s    and       IJ’s    decisions         “for   the     sake    of

17   completeness.”          Wangchuck v. Dep’t of Homeland Sec., 448

18   F.3d 524, 528 (2d Cir. 2006).                   The applicable standards of

19   review are well established.                   8 U.S.C. § 1252(b)(4)(B); Xiu

20   Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).

21          The agency may, “[c]onsidering the totality of the

22   circumstances,” base a credibility finding on an asylum


                                                2
 1   applicant’s “demeanor, candor, or responsiveness” and

 2   inconsistencies in his statements and other record evidence

 3   “without regard to whether” those inconsistencies go “to the

 4   heart of the applicant’s claim.”       8 U.S.C.

 5   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.            “We

 6   defer . . . to an IJ’s credibility determination unless . .

 7   . it is plain that no reasonable fact-finder could make such

 8   an adverse credibility ruling.”       Xiu Xia Lin, 534 F.3d at

 9   167.    Further, “[a] petitioner must do more than offer a

10   plausible explanation for his inconsistent statements to

11   secure relief; he must demonstrate that a reasonable fact-

12   finder would be compelled to credit his testimony.”          Majidi

13   v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (internal

14   quotation marks and citations omitted).        Substantial

15   evidence supports the agency’s determination that Yousuf was

16   not credible.

17          First,   the   adverse    credibility      determination    is

18   supported by internal inconsistencies in Yousuf’s testimony

19   and     inconsistencies     between   his   testimony     and     the

20   documentary record.       The IJ was entitled to rely on Yousuf’s

21   internally inconsistent testimony regarding when the Awami

22   League attempted to rape his wife (March or September 2011),


                                       3
 1   which was also inconsistent with his written application and

 2   the    documentary     evidence      that      he   provided.     Yousuf       was

 3   repeatedly asked to clarify, but his responses added only

 4   further inconsistency.            See Majidi, 430 F.3d at 80.

 5          Further, the IJ reasonably relied on inconsistencies

 6   between Yousuf’s testimony and his credible fear interview.

 7   Contrary to the Government’s position, Yousuf sufficiently

 8   exhausted     his    challenge       to       the   IJ’s    reliance   on      the

 9   interview.       See Gill v. INS, 420 F.3d 82, 84 (2d Cir. 2005).

10   Nonetheless, Yousuf’s challenge has no merit.                     The agency

11   assessed the reliability of the interview and reasonably

12   relied on the interview, which “displays the hallmarks of

13   reliability.”       Ming Zhang v. Holder, 585 F.3d 715, 725 (2d

14   Cir. 2009).         A Bengali interpreter was used, Yousuf was

15   advised of his rights and elected to proceed without an

16   attorney, the officer asked questions about Yousuf’s past

17   harm    and   future       fear    (which       were   memorialized       in     a

18   typewritten document), and at no point during the interview

19   did     Yousuf      seem    to     have        difficulty     answering        the

20   interviewer’s questions, providing specific details of his

21   alleged past harm in Bangladesh.


                                               4
 1       And the inconsistency between Yousuf’s testimony and

 2   the interview are apparent in the record.                Yousuf testified

 3   that the Awami League beat him on three occasions: July

 4   2009, January 2010, and December 2010.               However, during his

 5   interview   Yousuf    stated   that      he    was   beaten     only   twice:

 6   January 2010 and December 2010.                Yousuf did not offer a

 7   compelling explanation for this inconsistency.                  See Majidi,

 8   430 F.3d at 80.

 9       The IJ’s adverse credibility determination is further

10   bolstered   by   Yousuf’s    lack   of    responsiveness         during   the

11   hearing.    8 U.S.C. § 1158(b)(1)(B)(iii).               When questioned

12   about how many individuals were involved in the attacks, he

13   repeatedly responded with information about dates of the

14   attacks.    He had to be asked two or three times before

15   providing a responsive answer.

16       Given    the      inconsistency           findings    and     lack    of

17   responsiveness,      the   agency   reasonably        found     Yousuf    not

18   credible.   See Xiu Xia Lin, 534 F.3d at 165-66; Xian Tuan Ye

19   v. Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006)

20   (holding    that     an    “inconsistency         afforded      substantial

21   evidence to support the adverse credibility finding” where


                                         5
 1   it related to “an example of the very persecution from which

 2   [the    applicant]     sought    asylum”       (internal   quotation   marks

 3   omitted)).        That    finding         is    dispositive    of    asylum,

 4   withholding of removal, and CAT relief because all three

 5   claims are based on the same factual predicate.                 See Paul v.

 6   Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

 7          We decline to reach Yousuf’s conclusory argument that

 8   the agency ignored material evidence.                He did not raise this

 9   argument on appeal to the BIA, so it is unexhausted and not

10   subject to judicial review.          See Lin Zhong v. U.S. Dep’t of

11   Justice, 480 F.3d 104, 122 (2d Cir. 2007) (providing that

12   judicially imposed issue exhaustion is mandatory).

13          For the foregoing reasons, the petition for review is

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

15   removal that the Court previously granted in this petition

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

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

18   oral argument in this petition is DENIED in accordance with

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

20   Circuit Local Rule 34.1(b).

21                                       FOR THE COURT:
22                                       Catherine O’Hagan Wolfe, Clerk
23

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