Filed: Oct. 04, 2016
Latest Update: Mar. 03, 2020
Summary: 14-2604 Talukder v. Lynch BIA Nelson, IJ A200 170 238 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 N
Summary: 14-2604 Talukder v. Lynch BIA Nelson, IJ A200 170 238 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 NO..
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14-2604
Talukder v. Lynch
BIA
Nelson, IJ
A200 170 238
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
4 4th day of October, two thousand sixteen.
5
6 PRESENT:
7 REENA RAGGI,
8 DEBRA ANN LIVINGSTON,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 MD SHOPON TALUKDER,
14 Petitioner,
15
16 v. 14-2604
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Md Shopon Talukder, pro se, Jamaica,
24 New York.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Erica B.
28 Miles, Senior Litigation Counsel;
29 Jesse Lloyd Busen, Trial Attorney,
30 Office of Immigration Litigation,
31 United States Department of Justice,
32 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 is
4 DENIED.
5 Petitioner Md Shopon Talukder, a native and citizen of
6 Bangladesh, seeks review of a June 24, 2014 decision of the BIA,
7 affirming a May 9, 2013 decision of an Immigration Judge (“IJ”)
8 denying Talukder’s application for asylum, withholding of
9 removal, and relief under the Convention Against Torture
10 (“CAT”). See In re Md Shopon Talukder, No. A200 170 238 (B.I.A.
11 June 24, 2014), aff’g No. A200 170 238 (Immig. Ct. N.Y.C. May
12 9, 2013). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Under the circumstances of this case, we review both the
15 IJ and BIA opinions, see Wangchuck v. Dep’t of Homeland Sec.,
16 448 F.3d 524, 528 (2d Cir. 2006), applying well established
17 standards of review, see 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin
18 v. Mukasey,
534 F.3d 162, 165-66 (2d Cir. 2008).
19 I. Adverse Credibility Determination
20 For asylum applications like Talukder’s, the agency may,
21 “[c]onsidering the totality of the circumstances,” base a
22 credibility finding on an applicant’s demeanor,
23 inconsistencies in his statements, and other record evidence
2
1 “without regard to whether” they go “to the heart of the
2 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu
3 Xia Lin, 534 F.3d at 163-64. We “defer . . . to an IJ’s
4 credibility determination unless, from the totality of the
5 circumstances, it is plain that no reasonable fact-finder could
6 make such an adverse credibility ruling.” Xiu Xia Lin,
534 F.3d
7 at 167.
8 Here, the agency reasonably relied on Talukder’s demeanor
9 in finding him not credible. See 8 U.S.C.
10 § 1158(b)(1)(B)(iii). In particular, the IJ noted that
11 Talukder was hesitant and unresponsive when testifying about
12 his role as an executive member of the Bangladesh Nationalist
13 Party (“BNP”) and about incidents of harm he purportedly
14 suffered as a result of that membership. We afford this
15 assessment of Talukder’s demeanor “particular deference.” Li
16 Hua Lin v. U.S. Dep’t of Justice,
453 F.3d 99, 109 (2d Cir. 2006).
17 The agency’s demeanor finding is further supported by
18 record inconsistencies. See
id. (“We can be still more
19 confident in our review of observations about an applicant’s
20 demeanor where . . . they are supported by specific examples
21 of inconsistent testimony.”); see also Xiu Xia Lin,
534 F.3d
22 at 165-67. Talukder testified that he joined the BNP in 1998,
23 but his asylum application stated that he joined in 2001.
3
1 Further, Talukder submitted an affidavit from his wife and a
2 medical report, both of which stated that Awami League members
3 had stabbed Talukder multiple times in the upper left arm, left
4 hand, and right foot during an attempted kidnapping in November
5 2009. Talukder, however, did not mention this incident in his
6 asylum application, and his testimony regarding a November 2009
7 incident was inconsistent with his wife’s affidavit and the
8 medical report. See Xiu Xia Lin, 534 F.3d at 166 n.3 (”An
9 inconsistency and an omission are . . . functionally
10 equivalent.”). Talukder failed to provide a compelling
11 explanation for these inconsistencies. See Majidi,
430 F.3d
12 at 80.
13 Having questioned Talukder’s credibility, the agency
14 reasonably faulted his failure to provide corroborating
15 evidence to rehabilitate his testimony. See Biao Yang v.
16 Gonzales,
496 F.3d 268, 273 (2d Cir. 2007). In addition to the
17 inconsistencies created by certain of his corroborating
18 evidence, Talukder did not provide any documentation to
19 corroborate his claim that he remains an active BNP member in
20 the United States.
21 Given the demeanor, inconsistency, and corroboration
22 findings, we identify no basis to disturb the agency’s adverse
23 credibility determination, see Xiu Xia
Lin, 534 F.3d at 165-66,
4
1 which is dispositive of Talukder’s claims for asylum,
2 withholding of removal, and CAT relief, see Paul v. Gonzales,
3 444 F.3d 148, 156-57 (2d Cir. 2006).
4 II. Continuance and Fairness of Hearing
5 Talukder argues that the IJ erred in denying his request
6 for a continuance and denied him a fair hearing. We review an
7 IJ’s denial of a continuance request “under a highly deferential
8 standard of abuse of discretion.” Morgan v. Gonzales,
445 F.3d
9 549, 551 (2d Cir. 2006). An IJ “may grant a motion for
10 continuance for good cause shown,” 8 C.F.R. § 1003.29, and
11 “abuse[s] his discretion in denying a continuance if ‘(1) [his]
12 decision rests on an error of law (such as application of the
13 wrong legal principle) or a clearly erroneous factual finding
14 or (2) [his] decision—though not necessarily the product of a
15 legal error or a clearly erroneous factual finding—cannot be
16 located within the range of permissible decisions,’” Morgan,
17 445 F.3d at 551-52 (alterations in original) (quoting Zervos
18 v. Verizon N.Y., Inc.,
252 F.3d 163, 169 (2d Cir. 2001)).
19 Here, the IJ did not abuse her discretion in denying
20 Talukder’s motion for a continuance. Talukder had twenty
21 months to submit evidence in support of his application, but
22 he failed to do so or timely to move for a continuance, instead
5
1 waiting until just six days before his hearing to seek
2 additional time. See id.
3 Nor are we persuaded by Talukder’s argument that the IJ’s
4 hostility denied him a fair hearing. Although remand may be
5 required in rare cases where an IJ demonstrates bias and
6 hostility towards an asylum applicant, see Guo-Le Huang v.
7 Gonzales,
453 F.3d 142, 148 (2d Cir. 2006), the record here does
8 not support Talukder’s claims of hostility or bias.
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, any stay of removal
11 that the Court previously granted in this petition is VACATED,
12 and any pending motion for a stay of removal in this petition
13 is DISMISSED as moot. Any pending request for oral argument
14 in this petition is DENIED in accordance with Federal Rule of
15 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
16 34.1(b).
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk of Court
6
