Bhuiyan v. Barr BIA Vomacka, IJ A205 643 430

17-4115
Bhuiyan v. Barr
BIA
Vomacka, IJ
A205 643 430
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 1
for the Second Circuit, held at the Thurgood Marshall 2
United States Courthouse, 40 Foley Square, in the City of 3
New York, on the 22
nd
day of January, two thousand twenty. 4
5
PRESENT: 6
RICHARD C. WESLEY, 7
PETER W. HALL, 8
DENNY CHIN, 9
Circuit Judges. 10
_____________________________________ 11
12
MONIR AHAMMED BHUIYAN, AKA MONIR 13
HOSSAIN, 14
Petitioner, 15
16
v. 17-4115 17
NAC 18
WILLIAM P. BARR, UNITED STATES 19
ATTORNEY GENERAL, 20
Respondent. 21
_____________________________________ 22
23
FOR PETITIONER: Visuvanathan Rudrakumaran, New 24
York, NY. 25
26
FOR RESPONDENT: Joseph H. Hunt, Assistant 27
Attorney General; Justin Markel, 28
Senior Litigation Counsel; 29
Margaret O’Donnell, Trial 30
Attorney, Office of Immigration 31

2

Litigation, United States 1
Department of Justice, Washington, 2
DC. 3
4
UPON DUE CONSIDERATION of this petition for review of a 5
Board of Immigration Appeals (“BIA”) decision, it is hereby 6
ORDERED, ADJUDGED, AND DECREED that the petition for review 7
is DENIED. 8
Petitioner Monir Ahammed Bhuiyan, a native and citizen 9
of Bangladesh, seeks review of a December 1, 2017, decision 10
of the BIA affirming a February 27, 2017, decision of an 11
Immigration Judge (“IJ”) denying Bhuiyan’s application for 12
asylum, withholding of removal, and relief under the 13
Convention Against Torture (“CAT”). In re Monir Ahammed 14
Bhuiyan, No. A
205 643 430 (B.I.A. Dec. 1, 2017), aff’g No. A 15
205 643 430
(Immig. Ct. N.Y. City Feb. 27, 2017). We assume 16
the parties’ familiarity with the underlying facts and 17
procedural history in this case. 18
In his brief, Bhuiyan argues for the first time that the 19
agency failed to make an explicit adverse credibility 20
determination. In addition to being unexhausted, this 21
argument finds no support in the record. The IJ stated that 22
Bhuiyan was not credible and made specific findings, Bhuiyan 23

3

challenged the adverse credibility determination on appeal to 1
the BIA, and the BIA agreed with the IJ’s adverse credibility 2
determination. Accordingly,
we have reviewed both the BIA’s 3
and IJ’s decisions as to the adverse credibility determination. 4
See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). 5
We review the adverse credibility determination under the 6
substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); 7
Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). 8
“Considering the totality of the circumstances, and all 9
relevant factors, a trier of fact may base a credibility 10
determination on . . . the inherent plausibility of the 11
applicant’s . . . account, the consistency between the 12
applicant’s . . . written and oral statements . . . , the 13
internal consistency of each such statement, [and] the 14
consistency of such statements with other evidence of record 15
. . . without regard to whether an inconsistency, inaccuracy, 16
or falsehood goes to the heart of the applicant’s claim . . 17
. .” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an 18
IJ’s credibility determination unless, from the totality of 19
the circumstances, it is plain that no reasonable fact-finder 20
could make such an adverse credibility ruling.” Xiu Xia Lin 21

4

v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei 1
Gao, 891 F.3d at 76. Substantial evidence supports the 2
agency’s determination that Bhuiyan was not credible as to 3
his claim that he was persecuted by the Awami League and the 4
police on account of his membership in Jubo Dal, the youth 5
branch of the Bangladesh Nationalist Party (“BNP”). 6
The agency reasonably relied on Bhuiyan’s inconsistent 7
statements about the number of times he was attacked by Awami 8
League members and whether he was attacked by the police. 9
See 8 U.S.C. § 1158(b)(1)(B)(iii). At his credible fear 10
interview, Bhuiyan stated that he was attacked by Awami League 11
members once in 2009, he explicitly denied prior or subsequent 12
attacks, and he stated that he had never been mistreated by 13
police. In contrast, he testified that he was attacked by 14
Awami League members three times and that he was arrested, 15
detained, and severely beaten by the police in 2010. The 16
agency was not required to credit Bhuiyan’s explanation that 17
he was disoriented and nervous during his interview. See 18
Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A 19
petitioner must do more than offer a plausible explanation 20
for . . . inconsistent statements to secure relief; he must 21

5

demonstrate that a reasonable fact-finder would be compelled 1
to credit his testimony.” (internal quotations omitted)); 2
Yun-Zui Guan, 432 F.3d at 397 n.6 (applicant’s “mere 3
recitation that he was nervous or felt pressured during an 4
airport interview will not automatically prevent” the agency 5
from relying on statements made during the interview). 6
Despite an error in the agency’s reliance on a third 7
inconsistency regarding whether Bhuiyan’s attackers pressured 8
him to switch parties, these major inconsistencies regarding 9
the bases of his claim provide substantial evidence to support 10
the adverse credibility determination. See Xian Tuan Ye v. 11
Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006) 12
(holding that a material inconsistency regarding the basis of 13
an applicant’s asylum claim is substantial evidence of 14
adverse credibility);
see also Xiao Ji Chen v. U.S. Dep’t of 15
Justice, 471 F.3d 315, 338–39 (2d Cir. 2006) (denying petition 16
despite errors in adverse credibility determination because 17
there was substantial evidence for the determination absent 18
the errors). 19
Moreover, the adverse credibility determination is 20
bolstered by the agency’s implausibility findings. See 21

6

8 U.S.C. § 1158(b)(1)(B)(iii); Wensheng Yan v. Mukasey, 509 1
F.3d 63, 66 (2d Cir. 2007) (“It is well settled that, in 2
assessing the credibility of an asylum applicant’s testimony, 3
an IJ is entitled to consider whether the applicant’s story 4
is inherently implausible.”). And the IJ’s findings are 5
sufficiently tethered to the record. See Siewe v. Gonzales, 6
480 F.3d 160, 168–69 (2d Cir. 2007) (An implausibility finding 7
that is based on “speculation that inheres in inference is 8
not ‘bald’ if the inference is made available to the 9
factfinder by record facts, or even a single fact, viewed in 10
the light of common sense and ordinary experience.”). The 11
IJ reasonably found implausible Bhuiyan’s testimony that he 12
was unaware of the BNP’s involvement in violence, because he 13
later admitted that he had heard about violence and war crimes 14
committed by BNP members and his memorandum of law in support 15
of his application acknowledged violence between the BNP and 16
Awami League. Additionally, the IJ reasonably found it 17
implausible that Bhuiyan would go to the police and turn over 18
threatening letters without making copies of them as he 19
testified that the police had destroyed a previous letter, 20
refused to investigate, and detained and beat him. Finally, 21

7

as the agency found, Bhuiyan could not explain why local 1
higher-level BNP and Jubo Dal party members were able to 2
continue in their roles without interference while he had 3
allegedly been repeatedly targeted by the Awami League. 4
Finally, the agency did not err in finding that Bhuiyan’s 5
documentary evidence failed to rehabilitate his credibility. 6
“We generally defer to the agency’s evaluation of the weight 7
to be afforded to an applicant’s documentary evidence.” Y.C. 8
v. Holder, 741 F.3d 324, 332 (2d Cir. 2013). The IJ 9
reasonably afforded diminished weight to the letters and 10
affidavits from family, doctors, and fellow party members 11
because the authors were interested parties and/or not 12
subject to cross-examination, and some of the documents 13
lacked detail about the alleged persecution. See id. at 334 14
(deferring to agency’s decision to afford little weight to 15
relative’s letter from China because it was unsworn and from 16
an interested witness); Matter of H-L-H- & Z-Y-Z-, 25 I. & N. 17
Dec. 209, 215 (B.I.A. 2010) (finding that letters from alien’s 18
friends and family were insufficient to provide substantial 19
support for alien’s claims because they were from interested 20
witnesses not subject to cross-examination), overruled on 21

8

other grounds by Hui Lin Huang v. Holder, 677 F.3d 130, 133–1
38 (2d Cir. 2012). 2
Given Bhuiyan’s inconsistent statements and the 3
implausible aspects of his testimony, the agency’s adverse 4
credibility determination is supported by substantial 5
evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii). The adverse 6
credibility determination is dispositive of asylum, 7
withholding of removal, and CAT relief because all three forms 8
of relief are based on the same factual predicate. See Paul 9
v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). 10
For the foregoing reasons, the petition for review is 11
DENIED. All pending motions and applications are DENIED and 12
stays VACATED. 13
FOR THE COURT: 14
Catherine O’Hagan Wolfe, 15
Clerk of Court 16