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,

on the 4th 4 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 fact12 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

24

6