Filed: Feb. 18, 2010
Latest Update: Mar. 02, 2020
Summary: 08-3289-ag Hossain v. Holder BIA Montante, IJ A072 373 925 A096 442 850 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 DA
Summary: 08-3289-ag Hossain v. Holder BIA Montante, IJ A072 373 925 A096 442 850 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 DAT..
More
08-3289-ag
Hossain v. Holder
BIA
Montante, IJ
A072 373 925
A096 442 850
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 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 the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 18 th day of February, two thousand ten.
PRESENT:
GUIDO CALABRESI,
ROSEMARY S. POOLER,
ROBERT A. KATZMANN,
Circuit Judges.
_______________________________________
JAMAL HOSSAIN, ROKEYA HOSSAIN,
Petitioners,
v. 08-3289-ag
NAC
ERIC H. HOLDER, JR., ATTORNEY GENERAL, *
Respondent.
_______________________________________
FOR PETITIONERS: Hector M. Roman, Roman & Singh LLP,
Jackson Heights, N.Y..
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder Jr., is
automatically substituted for former Attorney General Michael
B. Mukasey as respondent in this case.
FOR RESPONDENT: Gregory G. Katsas, Assistant
Attorney General, Linda S. Wernery,
Assistant Director, Gerald M.
Alexander, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
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 in part and DISMISSED in part.
Jamal Hossain and Rokeya Hossain, husband and wife, are
natives and citizens of Bangladesh who seek review of a June
6, 2008 order of the BIA, affirming the August 14, 2006
decision of Immigration Judge (“IJ”) Phillip J. Montante,
which denied their application for asylum and Mr. Hossain’s
application for withholding of removal. In re Jamal Hossain
et al., Nos. A072 373 925, A096 442 850 (B.I.A. June 6,
2008), aff’g Nos. A072 373 925, A096 442 850 (Immig. Ct.
Buffalo Aug. 14, 2006). We assume the parties’ familiarity
with the underlying facts and procedural history in this
case.
When the BIA agrees with the IJ’s conclusion that a
petitioner is not credible and, without rejecting any of the
IJ’s grounds for decision, emphasizes particular aspects of
that decision, this Court reviews both the BIA’s and IJ’s
2
opinions—or more precisely, the Court reviews the IJ’s
decision including the portions not explicitly discussed by
the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d
Cir. 2005). We review the agency’s factual findings under
the substantial evidence standard. See 8 U.S.C.
§ 1252(b)(4)(B); see also Corovic v. Mukasey,
519 F.3d 90,
95 (2d Cir. 2008). We review de novo questions of law and
the application of law to undisputed fact. Salimatou Bah v.
Mukasey,
529 F.3d 99, 110 (2d Cir. 2008).
We find that substantial evidence supports the IJ’s
adverse credibility determination. In his initial asylum
application, Mr. Hossain claimed that (1) he feared he would
be persecuted due to his father's political activities, and
(2) that neither he nor anyone in his family had ever been
arrested. But in his second asylum application, Mr. Hossain
claimed that his father and brother had been unlawfully
arrested due to their political beliefs, that his father had
been unlawfully imprisoned on two occasions, and that the
“same people” who arrested his brother “were, at the time,
looking for [Mr. Hossain], even though [Mr. Hossain] had
committed no crime." At the hearing before the IJ, Mr.
Hossain claimed, for the first time, that he had personally
3
engaged in activism, was attacked during a demonstration at
which a bomb exploded killing some people, learned that he
would be falsely charged with the murders for political
reasons, and then fled Bangladesh in 1992.
Citing Ming Shi Xue v. BIA, 439 F.3d 111, 121 (2d Cir.
2006), Petitioners contend that the IJ erred in failing to
allow Mr. Hossain the opportunity to explain the omission of
these facts from his asylum applications. However, Mr.
Hossain was given such an opportunity with respect to his
first asylum application and, indeed, did attempt to explain
that the error was a result of his lack of familiarity with
English and bad advice he received from the legal assistant
who prepared the application on his behalf. The IJ
concluded that, even accepting this explanation, it would
not account for Mr. Hossain’s failure to include the
information on his second asylum application filed nine
years later.
The IJ did not specifically request an explanation from
Mr. Hossain for the omission from his second asylum
application. However, because the omission of the events
that allegedly lead to Mr. Hossain’s departure from
Bangladesh in 1992 was a "plainly obvious" and “dramatic”
incongruity, the IJ was not required to specifically request
an explanation. Ming Shi Xue, 439 F.3d at 121. Where "the
4
inconsistency is ‘dramatic' or obvious on its face . . . the
petitioner can be assumed to be aware-without being told-of
the need to explain it." Id. 122 n.13. We conclude that
the agency did not err in basing its adverse credibility
finding on this omission. See, e.g., Cheng Tong Wang v.
Gonzales,
449 F.3d 451, 453 (2d Cir. 2006) (“omissions that
go to a heart of an applicant’s claim can form the basis for
an adverse credibility determination”).
Having found that Mr. Hossain’s testimony was not
credible, the IJ reasonably concluded that he had failed to
submit sufficient documentation to rehabilitate his
testimony. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
F.3d 315, 341 (2d Cir. 2006) (noting that an IJ need not
first identify particular pieces of missing, relevant
evidence, and show that this evidence was reasonably
available to the applicant where the IJ bases his rejection
of a petitioner’s claim not on an absence of corroborative
evidence, but rather on his finding that petitioner’s
largely uncorroborated non-credible testimony was
insufficient to establish eligibility for relief). As to
the evidence Mr. Hossain did submit, he has waived any
challenge to the IJ’s refusal to consider it. See Yueqing
Zhang v. Gonzales,
426 F.3d 540, 546 n.7 (2d Cir. 2005).
5
Because the IJ’s adverse credibility determination was
supported by substantial evidence, see Corovic, 519 F.3d at
95, the agency’s denial of Petitioners’ application for
asylum and Mr. Hossain’s application for withholding of
removal was not improper, see Paul v. Gonzales,
444 F.3d
148, 156 (2d Cir. 2006) (recognizing that a withholding of
removal claim necessarily fails if petitioner cannot show
objective likelihood of persecution necessary for asylum
claim and both claims have the same factual predicate).
Finally, while Petitioners contend that the agency
erred in failing to consider Mr. Hossain’s claim for relief
under the Convention Against Torture (“CAT”), they failed to
challenge the failure to grant such relief before the BIA.
Because Petitioners did not exhaust their administrative
remedies with regard to CAT relief, we lack jurisdiction to
review this claim. See Karaj v. Gonzales, 462 F.3d 113, 119
(2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED in part and DISMISSED in part. 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
6
