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.

1 At a stated term of the United States Court of Appeals for 

2 the Second Circuit, held at the Thurgood Marshall United States 

3 Courthouse, 40 Foley Square, in the City of New York, on the 

2nd 4 day of September, two thousand fifteen. 

5 

6 PRESENT: 

7 ROBERT A. KATZMANN, 

8 Chief Judge,

9 DEBRA ANN LIVINGSTON, 

10 SUSAN L. CARNEY,

11 Circuit Judges. 

12 _____________________________________ 

13 

14 JOSIM UDDIN, 

15 Petitioner, 

16 

17 v. 14-763 

18 NAC 

19 

20 LORETTA E. LYNCH, UNITED STATES 

21 ATTORNEY GENERAL, 

22 Respondent. 

23 _____________________________________ 

24 

25 FOR PETITIONER: Thomas V. Massucci, New York, 

26 New York. 

27 

28 FOR RESPONDENT: Joyce R. Branda, Acting Assistant 

29 Attorney General; Leslie McKay, 
2 

1 Assistant Director; Anthony J. 

2 Messuri, Trial Attorney, Office of 

3 Immigration Litigation, United 

4 States Department of Justice, 

5 Washington, D.C. 

6 

7 UPON DUE CONSIDERATION of this petition for review of a 

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

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

10 DENIED. 

11 Petitioner Josim Uddin, a native and citizen of Bangladesh, 

12 seeks review of a February 14, 2014 decision of the BIA affirming 

13 a June 21, 2012 decision of an Immigration Judge (“IJ”) denying 

14 Uddin’s application for asylum, withholding of removal, and 

15 relief under the Convention Against Torture (“CAT”). In re 

16 Josim Uddin, No. A201 293 609 (B.I.A. Feb. 14, 2014), aff’g No. 

17 A201 293 609 (Immig. Ct. N.Y.C. June 21, 2012). We assume the 

18 parties’ familiarity with the underlying facts and procedural 

19 history in this case. 

20 Under the circumstances of this case, we have reviewed the 

21 IJ’s decision as the final agency determination. See Shunfu 

22 Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008). The applicable 

23 standards of review are well established. See 8 U.S.C. 

24 § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d 510, 

25 513 (2d Cir. 2009). 
3 

1 For asylum applications such as Uddin’s, governed by the 

2 REAL ID Act of 2005, the agency may, considering the totality 

3 of the circumstances, base a credibility finding on an asylum 

4 applicant’s “demeanor, candor, or responsiveness,” the 

5 plausibility of his account, and inconsistencies in his 

6 statements, so long as they reasonably support an inference that 

7 the applicant is not credible. 8 U.S.C. § 1158(b)(1)(B)(iii); 

8 see Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). 

9 We defer “to an IJ’s credibility determination unless, from the 

10 totality of the circumstances, it is plain that no reasonable 

11 fact-finder could make such an adverse credibility ruling.” 

12 Xiu Xia Lin, 534 F.3d at 167. In this case, the IJ reasonably 

13 based her adverse credibility determination on Uddin’s 

14 demeanor, and on inconsistencies in his testimony and evidence. 

15 “[D]emeanor is paradigmatically the sort of evidence that 

16 a fact-finder is best positioned to evaluate.” Li Zu Guan v. 

17 INS, 453 F.3d 129, 140 (2d Cir. 2006). Accordingly, we grant 

18 “particular deference” in applying the substantial evidence 

19 standard to credibility findings based on demeanor. Shu Wen 

20 Sun v. BIA, 510 F.3d 377, 381 (2d Cir. 2007) (internal quotation 

21 marks omitted). The IJ found that when Uddin realized an answer 

22 “was not satisfactory, he would ask for repetition of the 
4 

1 question, and then state that he did not understand,” leading 

2 to the impression that he did not know what his documents said 

3 or what his claim was about, instead relying on the cues of those 

4 around him to give the “right” answers. In re Josim Uddin, A201 

5 293 609, at 14 (Immig. Ct. N.Y.C. June 21, 2012). 

6 The IJ’s demeanor finding was further supported by specific 

7 examples of inconsistencies in the record. See Li Hua Lin v. 

8 U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006). Uddin 

9 claimed that, as an active member of the Bangladesh National 

10 Party (“BNP”), he was attacked on three occasions by an 

11 opposition political party, and arrested and tortured in 2009 

12 during a demonstration. Uddin was inconsistent regarding 

13 several aspects of his claim, including: the location of the 

14 hospital he went to after a 2010 attack; whether he retained 

15 a lawyer after he was arrested in 2009 and that lawyer’s name; 

16 and under what section of Bangladesh law he was arrested. Uddin 

17 argues that the IJ erred because she did not put him on notice 

18 that she thought his testimony was problematic. However, “the 

19 relevant inconsistenc[ies] w[ere] plainly self-evident so that 

20 identification . . . was not needed to make [Uddin] cognizant 

21 of the defect.” Ming Shi Xue v. BIA, 439 F.3d 111, 125 (2d Cir. 
5 

1 2006); see also Majidi v. Gonzales, 430 F.3d 77, 81 (2d Cir. 

2 2005). 

3 The IJ also based her adverse credibility determination on 

4 Uddin’s lack of knowledge about politics and government in 

5 Bangladesh. Although he portrayed himself as actively 

6 involved in a political campaign in 2008, he testified that that 

7 there were 64 open seats in Parliament in 2008; his party, the 

8 BNP, won 25 of those seats; and the Awami League won about 40 

9 seats. However, the U.S. State Department’s 2010 Human Rights 

10 Report on Bangladesh (the “Report”) stated that there were 300 

11 open seats and the Awami League won 230. (The Report does not 

12 state how many seats the BNP won.) 

13 Uddin does not dispute that his testimony regarding the 

14 makeup of Bangladesh’s parliament was inaccurate but argues 

15 that the IJ mischaracterized the level of his political 

16 involvement and thus had an unrealistic expectation regarding 

17 his political knowledge. Uddin now contends that he was a 

18 “lower-level” “foot soldier” for the BNP, active in a remote, 

19 rural area of the country. Pet’r’s Br. at 17-18. However, in 

20 his asylum application, Uddin wrote that he became a member of 

21 the local BNP affiliate in 2005, and was promoted to Publicity 

22 Secretary in 2008. As Publicity Secretary, he publicized 
6 

1 meetings, distributed leaflets, convinced young people to join, 

2 and campaigned in support of party candidates in local and 

3 national elections. He testified that he publicized and 

4 distributed party pamphlets and papers. There are “instances 

5 in which the nature of an individual applicant’s account would 

6 render his lack of a certain degree of doctrinal knowledge 

7 suspect and could therefore provide substantial evidence in 

8 support of an adverse credibility finding.” Rizal v. Gonzales, 

9 442 F.3d 84, 90 (2d Cir. 2006). This was one such instance. 

10 The IJ reasonably relied on Uddin’s portrayal of himself as an 

11 active member of the BNP to conclude that his lack of knowledge 

12 about Bangladesh government impugned his credibility. 

13 Because the REAL ID Act permits the agency to base a 

14 credibility finding on inconsistencies in an applicant’s 

15 statements regardless of whether they go to the heart of his 

16 claim, a totality of the circumstances supports the agency’s 

17 adverse credibility determination. 8 U.S.C. 

18 § 1158(b)(1)(B)(iii); see Xiu Xia Lin, 534 F.3d at 167. 

19 Because the only evidence of a threat to Uddin’s life or freedom 

20 depended upon his credibility, the agency’s finding that he was 

21 not credible necessarily precludes success on his claims for 
7 

1 asylum, withholding of removal, and CAT relief. See Paul v. 

2 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). 

3 For the foregoing reasons, the petition for review is 

4 DENIED. As we have completed our review, any stay of removal 

5 that the Court previously granted in this petition is VACATED, 

6 and any pending motion for a stay of removal in this petition 

7 is DISMISSED as moot. Any pending request for oral argument 

8 in this petition is DENIED in accordance with Federal Rule of 

9 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 

10 34.1(b). 

11 FOR THE COURT: 

12 Catherine O’Hagan Wolfe, Clerk