Farid Ahmed v. MERRICK B. GARLAND, United States Attorney General

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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FARID AHMED,
Petitioner,
v.
MERRICK B. GARLAND,
United States Attorney General,
Respondent.
No. 20-9640
(Petition for Review)
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ORDER AND JUDGMENT*
_________________________________
Before McHUGH, BALDOCK, and MORITZ, Circuit Judges.
_________________________________
Farid Ahmed is a native and citizen of Bangladesh who entered the United
States without permission. An immigration judge (IJ) found him removable and
ineligible for asylum, withholding of removal, or protection under the Convention
Against Torture (CAT), and ordered that he be returned to his home country. The
Board of Immigration Appeals (BIA) dismissed his appeal. Ahmed now petitions for
* After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
August 27, 2021
Christopher M. Wolpert
Clerk of Court
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review of the BIA’s decision. We have jurisdiction under 8 U.S.C. § 1252(a), and we
deny the petition.
I. BACKGROUND & PROCEDURAL HISTORY
In July 2019, the government served Ahmed with a notice to appear, alleging
he had entered the United States without permission the previous month. An IJ found
him removable as charged, and Ahmed then applied for asylum, withholding of
removal, and CAT protection. He claimed the Awami League Party (the current
ruling party in Bangladesh) persecuted him for his membership in an opposition party
known as the “LDP.”
At his asylum hearing, Ahmed testified about his LDP membership and four
events between December 12 and 25, 2018, during which he was either attacked or
threatened by persons he recognized as Awami party members. The IJ and the
government’s attorney questioned him about discrepancies between the story he
recounted at the hearing as compared to the story told in his asylum application and
supporting affidavits. Five of those discrepancies remain relevant here.
First, Ahmed stated in his asylum application that he worked for the LDP from
January 2017 to December 2017, but at the asylum hearing he testified that his
employment lasted from January 2017 to December 2018. When asked about the
discrepancy, Ahmed distinguished between joining the party and working for it, and
eventually settled on December 2017 to December 2018 as the term of his
employment. Later in the hearing, however, he equated joining the party with
receiving his job and reverted to January 2017 as the beginning of his term.
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Second, Ahmed’s asylum application described a December 12, 2018, attack
on the LDP office in his village. Ahmed recounted that Awami party members
entered the office, vandalized office equipment, and then beat him up with their bare
hands. By contrast, he testified at the asylum hearing that his attackers entered the
office, beat him up with their bare hands and with bamboo sticks, and then
vandalized the equipment. When asked about the differences between these
accounts, he stated that the credible fear interviewer had not asked him to break
down his story into a precise chronology.
Third, Ahmed’s asylum application described a December 21, 2018, attack by
seven or eight Awami members as he walked to the market in his village. At one
point, his attackers were kicking him as he lay on the ground and asking him why he
continued to work for the LDP. He responded that he would not go back to work for
the LDP, but they continued to beat him. Eventually they walked away, after which
unnamed others found him and brought him home. When recalling the same incident
at the asylum hearing, however, Ahmed denied saying anything to his attackers, but
instead testified that he screamed for help, causing people from the market to come
and rescue him. Neither the IJ nor the government asked Ahmed to explain the latter
discrepancy. As for the former, Ahmed explained that when he testified he had said
nothing to his attackers, he meant he had not used foul language.
Fourth, Ahmed’s asylum application described a December 23, 2018, attack
outside a local mosque by a group of Awami members. Ahmed stated that none of
his attackers said anything specifically to him, but they were telling each other to
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attack Ahmed wherever they might find him. When he recalled the same event at his
asylum hearing, he testified that, “right before [his attackers] left, . . . one of [them]
told me that next time when we will find you, that we will kill you. And then after
that, he kicked me once [and departed].” R. at 223. The government confronted him
with the difference between the two versions of the story and Ahmed responded that
the credible fear interviewer “didn’t ask the questions like today.” R. at 244.
Fifth, Ahmed testified at his asylum hearing about a December 25, 2018,
incident where some of his previous attackers, joined by others, pelted his house with
rocks and demanded that he come outside. His mother told them he was not home,
although he was actually hiding inside the house. The attackers then damaged a
bench and some chairs outside the house and left. No one was harmed. That was
when Ahmed decided to flee his village, beginning the journey that eventually
brought him to the United States. But an affidavit from Ahmed’s mother said that
these attackers entered the house looking for Ahmed, destroyed furniture in the
process, and severely beat Ahmed’s younger brother, requiring his hospitalization.
An affidavit from a neighbor similarly recalled that the assailants severely beat
Ahmed’s brother. When asked why he did not recall the attack on his brother,
Ahmed explained that he never saw his brother that day, did not know his brother had
been attacked, and speculated that his family never told him because they did not
want him to fear his pursuers even more.
At the conclusion of the hearing, the IJ announced that it found Ahmed
incredible based on the foregoing discrepancies. The IJ in turn found that Ahmed
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had not been persecuted or tortured in Bangladesh. On this basis, the IJ denied
Ahmed’s applications for asylum, withholding of removal, and CAT protection. The
BIA affirmed the IJ’s decision in a single-member summary disposition that relied on
the reasons given by the IJ, mostly without elaboration. 1 Ahmed then filed a timely
petition for review.
II. STANDARD OF REVIEW
A single-member BIA order “constitutes the final order of removal” and “we
will not affirm on grounds raised in the IJ decision unless they are relied upon by the
BIA in its affirmance.” Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir.
2006). “However, when seeking to understand the grounds provided by the BIA, we
are not precluded from consulting the IJ’s more complete explanation of those same
grounds.” Id. For example, we will consult the IJ’s decision “where the BIA
incorporates by reference the IJ’s rationale or repeats a condensed version of its
reasons while also relying on the IJ’s more complete discussion,” or “where the BIA
reasoning is difficult to discern and the IJ’s analysis is all that can give substance to
the BIA’s reasoning in the order of affirmance.” Id.
“[W]here the BIA determines a petitioner is not eligible for relief, we review
the decision to determine whether the record on the whole provides substantial
1 The IJ alternatively assumed that Ahmed testified credibly but found that the
attacks and harassment he experienced did not amount to persecution; and,
regardless, he could relocate within Bangladesh to avoid his attackers. The BIA
affirmed these alternative rulings, but the government does not rely on them to
defend the agency’s decision, so we do not address them further.
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support for that determination.” Id. In so doing, we must treat “administrative
findings of fact [as] conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
III. ANALYSIS
The government asks us to dispose of Ahmed’s petition at the outset by
finding that his opening brief fails to challenge the not-credible finding that
underlays the agency’s decision in this case. Ahmed appears pro se, so we construe
his filings liberally but do not serve as his advocate. See Garrett v. Selby Connor
Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Under that standard, we
conclude Ahmed’s opening brief contemplates an attack on the credibility finding.
See Pet’r Opening Br. at 4 (requesting protection from removal “after [having] been
granted credible fear positive”); id. (arguing the agency erred because it found
“inconsist[encies] where [they are] not important”). Even so, Ahmed’s minimal
arguments are not enough to overturn the agency’s decision.
In the asylum context, and in removal proceedings generally, Congress
requires the agency to judge credibility under “the totality of the circumstances,”
specifically to include “the consistency between the applicant’s or witness’s written
and oral statements . . . without regard to whether an inconsistency, inaccuracy, or
falsehood goes to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii)
(governing asylum); id. § 1229a(c)(4)(C) (setting the same standard for removal
proceedings generally). The agency’s credibility findings, “like other findings of
fact, are subject to the substantial evidence test.” Elzour v. Ashcroft, 378 F.3d 1143,
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1150 (10th Cir. 2004). We require the agency to give “specific, cogent reasons for
disbelieving [the applicant’s] testimony.” Id. (internal quotation marks omitted). An
adverse credibility determination “may not be based upon speculation, conjecture, or
unsupported personal opinion.” Id. at 1153.
Here, the agency carried out its statutory duty and adequately explained why it
found Ahmed incredible. Ahmed’s argument on this point does not establish that
“any reasonable adjudicator would be compelled to conclude to the contrary.”
8 U.S.C. § 1252(b)(4)(B). The finding that Ahmed did not experience persecution or
torture is therefore “conclusive,” id., and the agency appropriately denied relief.
IV. CONCLUSION
We deny the petition for review. 2
Entered for the Court
Bobby R. Baldock
Circuit Judge
2 We grant Ahmed’s motion to proceed on appeal without prepayment of costs
or fees.
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