14-763 Uddin v. Lynch BIA Poczter, IJ A201 293 609 

### 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**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **2 nd**  **day of September, two thousand fifteen.** 4 5 **PRESENT:** 6 **ROBERT A. KATZMANN,** 7 Chief Judge, 8 **DEBRA ANN LIVINGSTON,** 9 **SUSAN L. CARNEY,** 10 Circuit Judges. 11

**_____________________________________** 12 13 **JOSIM UDDIN,** 14 Petitioner **,** 15 16 **v. 14-763** 17 **NAC** 18 19 **LORETTA E. LYNCH, UNITED STATES** 20 **ATTORNEY GENERAL,** 21 Respondent **.** 22

**_____________________________________** 23 24 **FOR PETITIONER:** Thomas V. Massucci, New York, 25 New York. 26 27 **FOR RESPONDENT:** Joyce R. Branda, Acting Assistant 28 Attorney General; Leslie McKay, 292 Assistant Director; Anthony J. 1 Messuri, Trial Attorney, Office of 2 Immigration Litigation, United 3 States Department of Justice, 4 Washington, D.C. 5 6 UPON DUE CONSIDERATION of this petition for review of a 7 Board of Immigration Appeals (“BIA”) decision, it is hereby 8 ORDERED, ADJUDGED, AND DECREED that the petition for review is 9

DENIED. 10 Petitioner Josim Uddin, a native and citizen of Bangladesh, 11 seeks review of a February 14, 2014 decision of the BIA affirming 12 a June 21, 2012 decision of an Immigration Judge (“IJ”) denying 13 Uddin’s application for asylum, withholding of removal, and 14 relief under the Convention Against Torture (“CAT”). In re 15 Josim Uddin, No. A201 293 609 (B.I.A. Feb. 14, 2014), aff’gNo. 16 A201 293 609 (Immig. Ct. N.Y.C. June 21, 2012). We assume the 17 parties’ familiarity with the underlying facts and procedural 18 history in this case. 19 Under the circumstances of this case, we have reviewed the 20 IJ’s decision as the final agency determination. See Shunfu 21 Li v. Mukasey , 529 F.3d 141, 146 (2d Cir. 2008). The applicable 22 standards of review are well established. See 8 U.S.C. 23 § 1252(b)(4)(B); see also Yanqin Weng v. Holder , 562 F.3d 510, 24 513 (2d Cir. 2009). 253 For asylum applications such as Uddin’s, governed by the 1 REAL ID Act of 2005, the agency may, considering the totality 2 of the circumstances, base a credibility finding on an asylum 3 applicant’s “demeanor, candor, or responsiveness,” the 4 plausibility of his account, and inconsistencies in his 5 statements, so long as they reasonably support an inference that 6 the applicant is not credible. 8 U.S.C. § 1158(b)(1)(B)(iii); 7 see Xiu Xia Lin v. Mukasey , 534 F.3d 162, 167 (2d Cir. 2008). 8 We defer “to an IJ’s credibility determination unless, from the 9 totality of the circumstances, it is plain that no reasonable 10 fact-finder could make such an adve rse credibility ruling.” 11 Xiu Xia Lin , 534 F.3d at 167. In this case, the IJ reasonably 12 based her adverse credibility determination on Uddin’s 13 demeanor, and on inconsistencies in his testimony and evidence. 14 “[D]emeanor is paradigmatically the sort of evidence that 15 a fact-finder is best positioned to evaluate.” Li Zu Guan v. 16
INS , 453 F.3d 129, 140 (2d Cir . 2006). Accordingly, we grant 17 “particular deference” in applying the substantial evidence 18 standard to credibility findings based on demeanor. Shu Wen 19
Sun v. BIA , 510 F.3d 377, 381 (2d Cir. 2007) (internal quotation 20 marks omitted). The IJ found that when Uddin realized an answer 21 “was not satisfactory, he would ask for repetition of the 224 question, and then state that he did not understand,” leading 1 to the impression that he did not know what his documents said 2 or what his claim was about, instead relying on the cues of those 3 around him to give the “right” answers. In re Josim Uddin, A201 4 293 609, at 14 (Immig. Ct. N.Y.C. June 21, 2012). 5 The IJ’s demeanor finding was further supported by specific 6 examples of inconsistencies in the record. See Li Hua Lin v. 7 U.S. Dep’t of Justice , 453 F.3d 99, 109 (2d Cir. 2006). Uddin 8 claimed that, as an active member of the Bangladesh National 9 Party (“BNP”), he was attacked on three occasions by an 10 opposition political party, and arrested and tortured in 2009 11 during a demonstration. Uddin was inconsistent regarding 12 several aspects of his claim, including: the location of the 13 hospital he went to after a 2010 attack; whether he retained 14 a lawyer after he was arrested in 2009 and that lawyer’s name; 15 and under what section of Bangladesh law he was arrested. Uddin 16 argues that the IJ erred because she did not put him on notice 17 that she thought his testimony was problematic. However, “the 18 relevant inconsistenc[ies] w[ere] plai nly self-evident so that 19 identification . . . was not needed to make [Uddin] cognizant 20 of the defect.” Ming Shi Xue v. BIA , 439 F.3d 111, 125 (2d Cir. 215 2006); see also Majidi v. Gonzales , 430 F.3d 77, 81 (2d Cir. 1 2005). 2 The IJ also based her adverse credibility determination on 3 Uddin’s lack of knowledge about politics and government in 4 Bangladesh. Although he portrayed himself as actively 5 involved in a political campaign in 2008, he testified that that 6 there were 64 open seats in Parliament in 2008; his party, the 7 BNP, won 25 of those seats; and the Awami League won about 40 8 seats. However, the U.S. State Department’s 2010 Human Rights 9 Report on Bangladesh (the “Report”) stated that there were 300 10 open seats and the Awami League won 230. (The Report does not 11 state how many seats the BNP won.) 12 Uddin does not dispute that his testimony regarding the 13 makeup of Bangladesh’s parliament was inaccurate but argues 14 that the IJ mischaracterized the level of his political 15 involvement and thus had an unrealistic expectation regarding 16 his political knowledge. Uddin now contends that he was a 17 “lower-level” “foot soldier” for the BNP, active in a remote, 18 rural area of the country. Pet’r’s Br. at 17-18. However, in 19 his asylum application, Uddin wrote that he became a member of 20 the local BNP affiliate in 2005, and was promoted to Publicity 21 Secretary in 2008. As Publicity Secretary, he publicized 226 meetings, distributed leaflets, convinced young people to join, 1 and campaigned in support of party candidates in local and 2 national elections. He testified that he publicized and 3 distributed party pamphlets and papers. There are “instances 4 in which the nature of an individual applicant’s account would 5 render his lack of a certain degree of doctrinal knowledge 6 suspect and could therefore provide substantial evidence in 7 support of an adverse credibility finding.” Rizal v. Gonzales , 8 442 F.3d 84, 90 (2d Cir. 2006). This was one such instance. 9 The IJ reasonably relied on Uddin’s portrayal of himself as an 10 active member of the BNP to conc lude that his lack of knowledge 11 about Bangladesh government impugned his credibility. 12 Because the REAL ID Act permits the agency to base a 13 credibility finding on inconsistencies in an applicant’s 14 statements regardless of whether they go to the heart of his 15 claim, a totality of the circumstances supports the agency’s 16 adverse credibility determination. 8 U.S.C. 17 § 1158(b)(1)(B)(iii); see Xiu Xia Lin , 534 F.3d at 167. 18 Because the only evidence of a threat to Uddin’s life or freedom 19 depended upon his credibility, the agency’s finding that he was 20 not credible necessarily precludes success on his claims for 217 asylum, withholding of removal, and CAT relief. See Paul v. 1 Gonzales , 444 F.3d 148, 156-57 (2d Cir. 2006). 2 For the foregoing reasons, the petition for review is 3 DENIED. As we have completed our rev iew, any stay of removal 4 that the Court previously granted in this petition is VACATED, 5 and any pending motion for a stay of removal in this petition 6 is DISMISSED as moot. Any pending request for oral argument 7 in this petition is DENIED in accordance with Federal Rule of 8 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 9 34.1(b). 10
FOR THE COURT: 11 Catherine O’Hagan Wolfe, Clerk 12