18-3618 Uddin v. Garland BIA Cassin, IJ A206 765 163 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 11th day of March, two thousand twenty-two.

PRESENT: JON O. NEWMAN, ROSEMARY S. POOLER, GERARD E. LYNCH, Circuit Judges. _____________________________________

MAHI UDDIN, Petitioner,

v. 18-3618 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Raymond Lo, Esq., Jersey City, NJ.

FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Russell J.E. Verby, Senior Litigation Counsel; John D. Williams, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED,

AND DECREED that this petition for review of a decision of

the Board of Immigration Appeals (“BIA”) is DENIED.

Petitioner Mahi Uddin, a native and citizen of

Bangladesh, seeks review of a November 15, 2018, decision of

the BIA affirming an October 12, 2017, decision of an

Immigration Judge (“IJ”) denying his application for asylum,

withholding of removal, and relief under the Convention

Against Torture (“CAT”). In re Mahi Uddin, No. A206 765 163

(B.I.A. Nov. 15, 2018), aff’g No. A206 765 163 (Immig. Ct.

N.Y. City Oct. 12, 2017). We assume the parties’ familiarity

with the underlying facts and procedural history.

Under the circumstances of this case, we have reviewed

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

completeness.” Wangchuck v. DHS,

(2d Cir.

2006). The applicable standards of review are well

established. See

(b)(4)(B); Hong Fei Gao v.

Sessions,

(2d Cir. 2018).

“Considering the totality of the circumstances, and all

relevant factors, a trier of fact may base a credibility

2 determination on the demeanor, candor, or responsiveness of

the applicant or witness, . . . the consistency between the

applicant’s or witness’s written and oral statements . . . ,

[and] the internal consistency of each such statement . . .

without regard to whether an inconsistency, inaccuracy, or

falsehood goes to the heart of the applicant’s claim, or any

other relevant factor.”

(b)(1)(B)(iii). “We

defer . . . 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 v. Mukasey,

(2d Cir.

2008); accord Hong Fei Gao,

.

Here, substantial evidence supports the agency’s

determination that Uddin was not credible as to his claim

that members of the Bangladesh Awami League (“BAL”)

threatened him in March 2013 and invaded his house in April

and June 2013 because of his membership in the rival

Bangladesh Nationalist Party (“BNP”). Uddin’s inconsistent

testimony as to (1) whether he was a BNO member or merely a

supporter; (2) how many encounters he had with BAL members;

and (3) whether he reported any encounters to the police

support the agency’s determination. For example, at his

3 credible fear interview, Uddin stated that he “belong[ed]

with BNP” and “worked for the party,” but denied being a

“formal member.” But he testified that he was a formal member

of BNP and submitted a letter from BNP leaders as proof of

his membership. During that same interview, he described

two encounters with BAL members and stated that he did not

report those encounters to the police; but he added a third

encounter in his application and testimony and stated that he

reported one encounter to the police. The IJ was not required

to accept his explanations that he may have made errors or

had difficulty remembering. See Majidi v. Gonzales,

(2d Cir. 2005) (“A petitioner must do more than offer

a plausible explanation for his inconsistent statements to

secure relief; he must demonstrate that a reasonable fact-

finder would be compelled to credit his testimony.” (internal

quotation marks omitted)).

Moreover, the agency reasonably relied on Uddin’s

omission from his asylum application of an attack on his wife

and son after he left Bangladesh. Uddin testified that, while

attempting to kidnap his son, BAL members held a gun to his

wife and broke his son’s arm. He was inconsistent about the

month of this event, but he confirmed and his wife’s letter

4 reflected that the incident predated the filing of his asylum

application, and he had no explanation for the omission. See

Majidi,

; see also Hong Fei Gao,

(weight given to an omission depends, in part, on

whether “facts are ones that a credible petitioner would

reasonably have been expected to disclose under the relevant

circumstances”).

Given these inconsistencies, omission, and the deference

due to the IJ’s demeanor finding, substantial evidence

supports the adverse credibility determination. See Xiu Xia

Lin,

(agency may rely on cumulative effect of

inconsistencies and omissions); Jin Chen v. U.S. Dep’t of

Justice,

(2d Cir. 2005) (giving particular

deference to factfinder’s demeanor findings). The agency did

not abuse its discretion in declining to give weight to

Uddin’s documentary evidence, so that evidence did not

rehabilitate his credibility. See Y.C. v. Holder,

(2d Cir. 2013) (holding that “[w]e generally defer

to the agency’s evaluation of the weight to be afforded to an

applicant’s documentary evidence” and deferring to agency’s

decision to afford little weight to letter from applicant’s

spouse); Biao Yang v. Gonzales,

(2d Cir.

5 2007) (“An applicant’s failure to corroborate his or her

testimony may bear on credibility, because the absence of

corroboration in general makes an applicant unable to

rehabilitate testimony that has already been called into

question.”).

Finally, Uddin’s arguments that the IJ should have

inquired about his mental condition and the BIA should have

remanded for the IJ to reconsider credibility in light of a

psychological report are unavailing. He was asked about his

alleged memory problems at the hearing, he testified that he

had not seen a doctor about his memory, and he twice confirmed

that “[e]verything [wa]s okay” when questioned further about

his memory. The BIA was not required to remand for

consideration of a report that Uddin submitted on appeal

because remand requires “material, previously unavailable

evidence” and Uddin did not establish that he could not have

obtained the report earlier. Li Yong Cao v. U.S. Dep’t of

Justice,

(2d Cir. 2005); see also

(c)(1) (motion shall not be granted unless the new

evidence “was not available and could not have been discovered

or presented at the former hearing”). We decline to reach

Uddin’s argument that his former attorney should have

6 submitted evidence during the hearing because Uddin did not

raise an ineffective assistance of counsel claim before the

agency. See Arango-Aradondo v. INS,

(2d

Cir. 1994) (declining to reach ineffective assistance claim

not raised before the BIA).

For the foregoing reasons, the petition for review is

DENIED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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