20-3618 Uddin v. Garland BIA Thompson, IJ A206 675 323

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 Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 26th day of October, two thousand twenty- 5 two. 6 7 PRESENT: 8 JON O. NEWMAN, 9 DENNY CHIN, 10 RICHARD J. SULLIVAN, 11 Circuit Judges. 12 _____________________________________ 13 14 ALAUDDIN UDDIN, 15 Petitioner, 16 17 v. 20-3618 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 25 26 FOR PETITIONER: Khagendra Gharti-Chhetry, New 27 York, NY. 28 1 FOR RESPONDENT: Brian M. Boynton, Acting Assistant 2 Attorney General; Anthony C. 3 Payne, Assistant Director; Jessica 4 D. Strokus, Trial Attorney, Office 5 of Immigration Litigation, United 6 States Department of Justice, 7 Washington, DC. 8 9 UPON DUE CONSIDERATION of this petition for review of a

10 Board of Immigration Appeals (“BIA”) decision, it is hereby

11 ORDERED, ADJUDGED, AND DECREED that the petition for review

12 is DENIED.

13 Petitioner Alauddin Uddin, a native and citizen of

14 Bangladesh, seeks review of a September 28, 2020 decision of

15 the BIA, affirming a September 13, 2018 decision of an

16 Immigration Judge (“IJ”), denying Uddin’s application for

17 asylum, withholding of removal, and relief under the

18 Convention Against Torture (“CAT”). In re Alauddin Uddin,

19 No. A206 675 323 (B.I.A. Sept. 28, 2020), aff’g No. A206 675

20 323 (Immigr. Ct. N.Y. City Sept. 13, 2018). We assume the

21 parties’ familiarity with the underlying facts and procedural

22 history.

23 Under the circumstances, we have reviewed both the IJ’s

24 and BIA’s opinions. See Wangchuck v. Dep’t of Homeland Sec.,

25

(2d Cir. 2006). The IJ did not abuse his

26 discretion in denying a continuance for Uddin to submit

2 1 corroborating evidence, and substantial evidence supports the

2 agency’s determination that Uddin was not credible as to his

3 claim that Awami League members attacked him on account of

4 his political activities with the Bangladesh Nationalist

5 Party (“BNP”).

6 We review the denial of a continuance “under a highly

7 deferential standard of abuse of discretion.” Morgan v.

8 Gonzales,

(2d Cir. 2006). An IJ “may grant

9 a motion for continuance for good cause shown.” 8 C.F.R.

10 § 1003.29 (effective until Jan. 14, 2021). The IJ did not

11 abuse his discretion in declining to delay proceedings to

12 provide Uddin additional time to obtain and present

13 corroborating documents, given that he had been instructed to

14 submit such evidence multiple times and had more than four

15 years to do so. See Morgan,

; cf. Chuilu Liu

16 v. Holder,

(2d Cir. 2009) (providing that

17 “the alien bears the ultimate burden of introducing such

18 evidence without prompting from the IJ”).

19 We review the agency’s adverse credibility determination

20 for substantial evidence, see Hong Fei Gao v. Sessions, 891

(2d Cir. 2018), and “the administrative findings

22 of fact are conclusive unless any reasonable adjudicator

3 1 would be compelled to conclude to the contrary,” 8 U.S.C.

2 § 1252(b)(4)(B). “Considering the totality of the

3 circumstances, and all relevant factors, a trier of fact may

4 base a credibility determination on the demeanor, candor, or

5 responsiveness of the applicant or witness, . . . the

6 consistency between the applicant’s or witness’s written and

7 oral statements (whenever made and whether or not under oath,

8 and considering the circumstances under which the statements

9 were made), the internal consistency of each such statement

10 . . . , and any inaccuracies or falsehoods in such statements,

11 without regard to whether an inconsistency, inaccuracy, or

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

13 other relevant factor.”

(b)(1)(B)(iii). “We

14 defer . . . to an IJ’s credibility determination unless, from

15 the totality of the circumstances, it is plain that no

16 reasonable fact-finder could make such an adverse credibility

17 ruling.” Xiu Xia Lin v. Mukasey,

(2d Cir.

18 2008); accord Hong Fei Gao, 891 F.3d at 76.

19 The IJ reasonably relied in part on Uddin’s demeanor,

20 noting that his testimony was repeatedly unresponsive. See

21

(b)(1)(B)(iii). We generally defer to an IJ’s

22 assessment of demeanor. See Majidi v. Gonzales,

,

4 1 81 n.1 (2d Cir. 2005) (recognizing deference due to the trier

2 of fact’s assessment of demeanor); Jin Chen v. U.S. Dep’t of

3 Justice,

(2d Cir. 2005) (“We give particular

4 deference to credibility determinations that are based on the

5 adjudicator’s observation of the applicant’s demeanor, in

6 recognition of the fact that the IJ’s ability to observe the

7 witness’s demeanor places [the IJ] in the best position to

8 evaluate whether apparent problems in the witness’s testimony

9 suggest a lack of credibility or, rather, can be attributed

10 to an innocent cause such as difficulty understanding the

11 question.”). Moreover, the demeanor finding is supported by

12 the record, which shows that Uddin was unresponsive when asked

13 to describe one of his attacks, and, among other questions,

14 whether he went to the police only once on a certain date,

15 why he had not obtained corroborating evidence earlier, and

16 when he was threatened.

17 The IJ’s demeanor finding, and the adverse credibility

18 determination as a whole, are further supported by Uddin’s

19 inconsistent statements regarding (1) whether he was attacked

20 two or three times, (2) whether those attacks occurred two

21 years before he left Bangladesh in 2014 or mere days before

22 his departure, (3) whether he made a report to police after

5 1 his first attack in January or in March after all the attacks,

2 and (4) whether Awami League members locked his store in an

3 attempt to extort him. See

(b)(1)(B)(iii);

4 cf. Li Hua Lin v. U.S. Dep’t of Justice,

, 109

5 (2d Cir. 2006) (“We can be still more confident in our review

6 of observations about an applicant’s demeanor where, as here,

7 they are supported by specific examples of inconsistent

8 testimony.”). Although a minor date discrepancy need not

9 impugn an applicant’s credibility, see Diallo v. I.N.S., 232

(2d Cir. 2000), these inconsistencies were not

11 minor since they concern whether his attacks occurred mere

12 days before he fled the country or two years beforehand.

13 Uddin did not compellingly explain the inconsistencies. See

14 Majidi,

(“A petitioner must do more than offer

15 a plausible explanation for his inconsistent statements to

16 secure relief; he must demonstrate that a reasonable

17 fact-finder would be compelled to credit his testimony.”

18 (internal quotation marks omitted)).

19 Having questioned Uddin’s credibility, the agency

20 reasonably relied further on his failure to rehabilitate his

21 credibility with any documentary evidence corroborating his

22 claims, despite having more than four years to obtain such

6 1 evidence. “An applicant’s failure to corroborate his or her

2 testimony may bear on credibility, because the absence of

3 corroboration in general makes an applicant unable to

4 rehabilitate testimony that has already been called into

5 question.” Biao Yang v. Gonzales,

(2d Cir.

6 2007).

7 The demeanor finding, inconsistencies, and lack of

8 corroboration provide substantial evidence for the agency’s

9 adverse credibility determination. See 8 U.S.C.

10 § 1158(b)(1)(B)(iii); Xiu Xia Lin,

; see also

11 Likai Gao v. Barr,

, 145 n.8 (2d Cir. 2020)

12 (“[E]ven a single inconsistency might preclude an alien from

13 showing that an IJ was compelled to find him credible.

14 Multiple inconsistencies would so preclude even more

15 forcefully.”). That adverse credibility determination is

16 dispositive of asylum, withholding of removal, and CAT relief

17 because all three claims were based on the same factual

18 predicate. See Paul v. Gonzales,

, 156–57

19 (2d Cir. 2006).

7 1 For the foregoing reasons, the petition for review is

2 DENIED. All pending motions and applications are DENIED and

3 stays VACATED.

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

8