11-1754-ag

Hussein v. Holder

BIA

Videla, IJ

A072 753 491

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

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At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of

New York, on the 16th day of February, two thousand twelve.

PRESENT:

ROBERT A. KATZMANN,

REENA RAGGI,

RAYMOND J. LOHIER, JR.,

Circuit Judges.

_____________________________________

MURTADA ABBAS HUSSEIN, AKA MURTADA

HUSSEIN,

Petitioner, 

 v. 11-1754-ag

NAC 

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL, 

Respondent.

_______________________________________

FOR PETITIONER: Joshua Bardavid, New York, 

N.Y.

FOR RESPONDENT: Tony West, Assistant Attorney

General; Thomas B. Fatouros, Senior

Litigation Counsel; James A. Hurley,

Attorney, Office of Immigration

Litigation, United States Department

of Justice, Washington, D.C.
2

UPON DUE CONSIDERATION of this petition for review of a

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

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

is DENIED.

Petitioner Murtada Abbas Hussein, a native and citizen

of the Sudan, seeks review of an April 12, 2011 order of the

BIA, affirming a September 3, 2009 decision of Immigration

Judge (“IJ”) Gabriel C. Videla, which denied his application

for withholding of removal and relief under the Convention

Against Torture (“CAT”). In re Murtada Abbas Hussein, No.

A072 753 491 (B.I.A. Apr. 12, 2011), aff’g No. A072 753 491

(Immig. Ct. N.Y. City Sept. 3, 2009). We assume the

parties’ familiarity with the underlying facts and

procedural history in this case. 

Under the circumstances of this case, we have reviewed

the IJ’s decision including the portions not explicitly

discussed by the BIA. See Yun-Zui Guan v. Gonzales, 432

F.3d 391, 394 (2d Cir. 2005). The applicable standards of

review are well-established. See 8 U.S.C. § 1252(b)(4)(B);

Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). 

For applications like this one, governed by the REAL ID Act

of 2005, the agency may, considering the totality of the

circumstances, base a credibility finding on an applicant’s
3

demeanor, the plausibility of his account, and

inconsistencies in his statements, without regard to whether

they go “to the heart of the applicant’s claim.” 8 U.S.C.

§ 1158(b)(1)(B)(iii); Matter of J-Y-C-, 24 I. & N. Dec. 260,

265 (B.I.A. 2007). Analyzed under the REAL ID Act, the

agency’s adverse credibility determination is supported by

substantial evidence. 

In finding Hussein not credible, the agency reasonably

relied on his unresponsive and evasive demeanor, which was

supported with specific citations to the record. See 

8 U.S.C. § 1158(b)(1)(B)(iii). For example, in recounting

Hussein’s testimony concerning the omission of his prior

arrests from his application, the IJ specifically noted that

he “gave a series” of unresponsive answers, identifying

those responses. In addition, the IJ explicitly noted that

Hussein gave various non-responsive answers when questioned

about the omission of his full employment history from his

application and the Sudanese government’s awareness of his

activities in the United States. During the hearing, the IJ

repeatedly instructed Hussein regarding his unresponsive and

evasive demeanor and also noted that he was smiling when

asked about his arrest for sexual assault and resisting

arrest. While Hussein takes issue with the IJ’s demeanor
4

finding for failing to discuss his “entire demeanor,”

because demeanor is “virtually always evaluated subjectively

and intuitively,” we defer to the IJ’s assessment. Tu Lin

v. Gonzales, 446 F.3d 395, 400 (2d Cir. 2006). 

The agency also reasonably relied on omissions from

Hussein’s application and inconsistencies in his testimony

in making its adverse credibility determination. See 

8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534

F.3d 162, 166 n.3 (2d Cir. 2008)(providing that, for

purposes of analyzing a credibility determination, “[a]n

inconsistency and an omission are . . . functionally

equivalent”). As the agency noted, Hussein failed to

disclose his prior arrests and ten year employment at a

women’s clothing store on his initial application. When

questioned about his failure to disclose his prior arrests,

although Hussein stated that “[n]obody translated this

application to me,” he previously had represented that every

word of the application had been translated to him. While

these omissions and inconsistencies do not go to the heart

of Hussein’s claim, they are nevertheless a proper basis for

the agency’s adverse credibility determination. See Xiu Xia

Lin, 534 F.3d at 167. 
5

Moreover, notwithstanding Hussein’s unsupported

assertion to the contrary, the mere fact that he amended his

withholding application – in the middle of his merits

hearing, after offering inconsistent testimony, and after

being specifically invited by the IJ to do so – does not

cure the inconsistencies in the record. See Kaur v.

Gonzales, 418 F.3d 1061, 1065 (9th Cir. 2005) (“It strains

credulity to hold that [we are compelled] to find Kaur

believable for the sole reason that she admitted to being a

liar.”). While Hussein also argues that he provided a

reasonable explanation for the inconsistencies and

omissions, namely, that he did not understand the written

questions, in light of his prior admission that his

application was fully read and translated to him, the agency

was not required to credit this explanation. See Majidi v.

Gonzales, 430 F.3d 77, 80 (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). Given the demeanor finding and the

inconsistencies and omissions, the agency’s adverse

credibility determination is supported by substantial
6

evidence, and provided a valid basis for the denial of both

withholding of removal and CAT relief, as the claims shared

the same factual predicate. See Xue Hong Yang v. U.S. Dep’t

of Justice, 426 F.3d 520, 523 (2d Cir. 2005).

Before this Court, Hussein also argues that the IJ

failed to consider photographs of his protest activities in

the U.S. and a membership letter from the Darfur People’s

Association. Because, as the government points out, Hussein

did not raise this issue before the BIA, it is unexhausted

and we decline to consider it. See Lin Zhong v. U.S. Dep’t

of Justice, 480 F.3d 104, 122-23 (2d Cir. 2007).

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, the pending motion

for a stay of removal in this petition is DISMISSED as moot. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk