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 PR OCEDURE 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 United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 4 th** **day of October, two thousand sixteen.** 4 5 **PRESENT:** 6 **JOSÉ A. CABRANES,** 7 **DENNY CHIN,** 8 **RAYMOND J. LOHIER, JR.,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **MOHAMMED YOUSUF,** 13 Petitioner**,** 14 15 **v. 15-143** 16 **NAC** 17 **LORETTA E. LYNCH, UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Salim Sheikh, New York, New 23 York. 24 25 FOR RESPONDENT: Benjamin C. Mizer, Principal 26 Deputy Assistant Attorney 27 General; Douglas E. Ginsburg, 28 Assistant Director; Deitz P. 29 Lefort, Trial Attorney, Office 30 of Immigration Litigation, 31 United States Department of 32 Justice, Washington, D.C. 33UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DENIED. 4 Petitioner Mohammed Yousuf, a native and citizen of 5 Bangladesh, seeks review of a December 16, 2014, decision of 6 the BIA, affirming a February 6, 2013, decision of an 7 Immigration Judge (“IJ”) denying Yousuf’s application for 8 asylum, withholding of removal, and relief under the 9 Convention Against Torture (“CAT”). In re Mohammed Yousuf, 10 No. A201 293 608 (B.I.A. Dec. 16, 2014), aff’gNo. A201 293 11 608 (Immig. Ct. N.Y. City Feb. 6, 2013). We assume the 12 parties’ familiarity with the underlying facts and 13 procedural history in this case. 14 Under the circumstances of this case, we have reviewed 15 both the BIA’s and IJ’s decisions “for the sake of 16 completeness.” Wangchuck v. Dep’t of Homeland Sec. , 448 17 F.3d 524, 528 (2d Cir. 2006). The applicable standards of 18 review are well established. 8 U.S.C. § 1252(b)(4)(B); Xiu 19 Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). 20 The agency may, “[c]onsidering the totality of the 21 circumstances,” base a credibility finding on an asylum 22

2applicant’s “demeanor, candor, or responsiveness” and 1 inconsistencies in his statements and other record evidence 2 “without regard to whether” those inconsistencies go “to the 3 heart of the applicant’s claim.” 8 U.S.C. 4 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. “We 5 defer . . . to an IJ’s credibility determination unless . . 6 . it is plain that no reasonable fact-finder could make such 7 an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 8 167. Further, “[a] petitioner must do more than offer a 9 plausible explanation for his inconsistent statements to 10 secure relief; he must demonstrate that a reasonable fact11 finder would be compelledto credit his testimony.” Majidi 12 v. Gonzales , 430 F.3d 77, 80 (2d Cir. 2005) (internal 13 quotation marks and citations omitted). Substantial 14 evidence supports the agency’s determination that Yousuf was 15 not credible. 16 First, the adverse credibility determination is 17 supported by internal inconsistencies in Yousuf’s testimony 18 and inconsistencies between his testimony and the 19 documentary record. The IJ was entitled to rely on Yousuf’s 20 internally inconsistent testimony regarding when the Awami 21 League attempted to rape his wife (March or September 2011), 22

3which was also inconsistent with his written application and 1 the documentary evidence that he provided. Yousuf was 2 repeatedly asked to clarify, but his responses added only 3 further inconsistency. See Majidi , 430 F.3d at 80. 4 Further, the IJ reasonably relied on inconsistencies 5 between Yousuf’s testimony and his credible fear interview. 6 Contrary to the Government’s position, Yousuf sufficiently 7 exhausted his challenge to the IJ’s reliance on the 8 interview. See Gill v. INS, 420 F.3d 82, 84 (2d Cir. 2005). 9 Nonetheless, Yousuf’s challenge has no merit. The agency 10 assessed the reliability of the interview and reasonably 11 relied on the interview, which “displays the hallmarks of 12 reliability.” Ming Zhang v. Holder, 585 F.3d 715, 725 (2d 13 Cir. 2009). A Bengali interpreter was used, Yousuf was 14 advised of his rights and elected to proceed without an 15 attorney, the officer asked questions about Yousuf’s past 16 harm and future fear (which were memorialized in a 17 typewritten document), and at no point during the interview 18 did Yousuf seem to have difficulty answering the 19 interviewer’s questions, providing specific details of his 20 alleged past harm in Bangladesh. 21

4And the inconsistency between Yousuf’s testimony and 1 the interview are apparent in the record. Yousuf testified 2 that the Awami League beat him on three occasions: July 3 2009, January 2010, and December 2010. However, during his 4 interview Yousuf stated that he was beaten only twice: 5 January 2010 and December 2010. Yousuf did not offer a 6 compelling explanation for this inconsistency. See Majidi , 7 430 F.3d at 80. 8 The IJ’s adverse credibility determination is further 9 bolstered by Yousuf’s lack of responsiveness during the 10 hearing. 8 U.S.C. § 1158(b)(1)(B)(iii). When questioned 11 about how many individuals were involved in the attacks, he 12 repeatedly responded with information about dates of the 13 attacks. He had to be asked two or three times before 14 providing a responsive answer. 15 Given the inconsistency findings and lack of 16 responsiveness, the agency reasonably found Yousuf not 17 credible. See Xiu Xia Lin, 534 F.3d at 165-66; Xian Tuan Ye 18 v. Dep’t of Homeland Sec. , 446 F.3d 289, 295 (2d Cir. 2006) 19 (holding that an “inconsistency afforded substantial 20 evidence to support the adverse credibility finding” where 21

5it related to “an example of the very persecution from which 1 [the applicant] sought asylum” (internal quotation marks 2 omitted)). That finding is dispositive of asylum, 3 withholding of removal, and CAT relief because all three 4 claims are based on the same factual predicate. See Paul v. 5 Gonzales , 444 F.3d 148, 156-57 (2d Cir. 2006). 6 We decline to reach Yousuf’s conclusory argument that 7 the agency ignored material evidence. He did not raise this 8 argument on appeal to the BIA, so it is unexhausted and not 9 subject to judicial review.See Lin Zhong v. U.S. Dep’t of 10 Justice , 480 F.3d 104, 122 (2d Cir. 2007) (providing that 11 judicially imposed issue exhaustion is mandatory). 12 For the foregoing reasons, the petition for review is 13 DENIED. As we have completed our review, any stay of 14 removal that the Court previously granted in this petition 15 is VACATED, and any pending motion for a stay of removal in 16 this petition is DISMISSED as moot. Any pending request for 17 oral argument in this petition is DENIED in accordance with 18 Federal Rule of Appellate Procedure 34(a)(2), and Second 19 Circuit Local Rule 34.1(b). 20
FOR THE COURT: 21 Catherine O’Hagan Wolfe, Clerk 22 23 24 6