Filed: Sep. 23, 2010
Latest Update: Feb. 21, 2020
Summary: 09-2828-ag Das v. Holder BIA Elstein, IJ A079 127 655 A079 131 030 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 DATABAS
Summary: 09-2828-ag Das v. Holder BIA Elstein, IJ A079 127 655 A079 131 030 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..
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09-2828-ag
Das v. Holder
BIA
Elstein, IJ
A079 127 655
A079 131 030
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 23 rd day of September, two thousand ten.
5
6 PRESENT:
7 REENA RAGGI,
8 RICHARD C. WESLEY,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _______________________________________
12
13 SHOMBHU KUMAR DAS, a.k.a. ZHOMBHU DAS,
14 a.k.a. DAS SHOMBHU KUMAR, OMA RANI DEB,
15 a.k.a. DEB OMA RANI, a.k.a. UMA RANI DEB,
16 Petitioners,
17
18 v. 09-2828-ag
19 NAC
20 ERIC H. HOLDER, JR., U.S. ATTORNEY
21 GENERAL,
22 Respondent.
23 _______________________________________
24
25 FOR PETITIONERS: Amy N. Gell, Gell & Gell, New York,
26 New York.
27
28 FOR RESPONDENT: Tony West, Assistant Attorney
29 General, William C. Peachey,
30 Assistant Director, Matthew A.
31 Spurlock, Attorney, Office of
32 Immigration Litigation, Civil
1 Division, United States Department
2 of Justice, Washington, D.C.
3
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 decision of the Board of Immigration Appeals (“BIA”), it is
7 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
8 review is DENIED in part and DISMISSED in part.
9 Petitioners, both natives and citizens of Bangladesh,
10 seek review of a June 1, 2009, order of the BIA, affirming
11 the September 19, 2007, decision of Immigration Judge (“IJ”)
12 Annette S. Elstein, denying their applications for
13 withholding of removal and relief under the Convention
14 Against Torture (“CAT”). In re Das, Nos. A079 127 655, A
15 079 131 030 (B.I.A. June 1, 2009), aff’g Nos. A079 127 655,
16 A 079 131 030 (Immig. Ct. N.Y. City Sept. 19, 2007). We
17 assume the parties’ familiarity with the underlying facts
18 and procedural history of the case.
19 Under the circumstances of this case, we review the
20 IJ’s decision as supplemented by the BIA. See Yan Chen v.
21 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the
22 agency’s factual findings, including adverse credibility
23 determinations, under the substantial evidence standard,
24 treating them as “conclusive unless any reasonable
2
1 adjudicator would be compelled to conclude to the contrary.”
2 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519
3 F.3d 90, 95 (2d Cir. 2008); Diallo v. INS,
232 F.3d 279, 287
4 (2d Cir. 2000)(“We reverse [the BIA] only if no reasonable
5 fact-finder could have failed to find the past persecution
6 or fear of future persecution necessary to sustain the
7 petitioner’s burden.”).
8 I. Unexhausted and Waived Claims
9 As an initial matter, we are without jurisdiction to
10 consider Petitioners’ unexhausted challenge to the IJ’s
11 denial of their CAT claim, and we must dismiss the petition
12 for review to that extent. See 8 U.S.C. § 1252(d)(1). We
13 therefore review only Petitioners’ challenge to the agency’s
14 denial of their applications for withholding of removal.
15 We also decline to review Petitioners’ unexhausted
16 arguments that the IJ failed to provide them with an
17 opportunity to explain the inconsistencies in their
18 testimony, that the IJ overlooked a plausible explanation
19 for those inconsistencies, and that the IJ failed to make a
20 specific adverse credibility determination. Petitioners
21 failed to raise these arguments in their appeal to the BIA,
22 and because the Government has raised this failure to
3
1 exhaust in its brief to this Court, we decline to consider
2 them. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104,
3 119-22 (2d Cir. 2007) (“[W]hen an applicant for asylum or
4 withholding of removal has failed to exhaust an issue before
5 the BIA, and that issue is, therefore, not addressed in a
6 reasoned BIA decision, we are . . . usually unable to review
7 the argument.”).
8 Additionally, because Petitioners have failed to
9 sufficiently challenge, either before this Court or in their
10 appeal brief to the BIA, the IJ’s finding that Deb’s alleged
11 assault in 1998 was not motivated by a statutorily protected
12 ground, we deem any such argument waived. Yueqing Zhang v.
13 Gonzales,
426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).
14 II. Withholding of Removal
15 With regard to their withholding of removal claims,
16 Petitioners’ arguments that the agency erred in finding that
17 they failed to meet their burden of demonstrating past
18 persecution or a well-founded fear of persecution are
19 unavailing.
20 A. Past Persecution
21 The record supports the agency’s determination that
22 Petitioners failed to demonstrate that they suffered past
4
1 persecution. The IJ reasonably found that Petitioners’
2 claim that Das was stabbed in 1998 was not credible. As the
3 IJ found, although Das testified that he was released after
4 receiving first aid treatment, a medical document he
5 submitted stated that he received treatment for a month.
6 Although minor and isolated discrepancies may be
7 insufficient to support an adverse credibility finding, see
8 Diallo, 232 F.3d at 288, the discrepancy here relates to
9 events at the heart of Petitioners’ claim because Das
10 testified that the stabbing was the worst harm he had
11 suffered. Thus, the IJ reasonably relied on the
12 inconsistency, and on the fact that the medical document was
13 not otherwise reliable since it was not contemporaneous and
14 the doctor who wrote it was apparently a relative of Das, to
15 call into question Petitioners’ credibility regarding the
16 stabbing incident. See Tu Lin v. Gonzales,
446 F.3d 395,
17 402 (2d Cir. 2006).
18 Additionally, Petitioners argue that evidence that Das
19 received threatening letters which directed him to leave
20 Bangladesh, and that Das was “attacked” on six occasions in
21 Bangladesh established past persecution based on their
22 religion. Past persecution requires that the harm be
5
1 sufficiently severe, rising above “mere harassment.” See
2 Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d
3 Cir. 2006). “[P]ersecution is an extreme concept that does
4 not include every sort of treatment our society regards as
5 offensive.” Ai Feng Yuan v. U.S. Dep’t of Justice,
416 F.3d
6 192, 198 (2d Cir. 2005), overruled on other grounds by Shi
7 Liang Lin v. U.S. Dep’t of Justice,
494 F.3d 296, 305 (2d
8 Cir.2005) (en banc). Here, although there is record
9 evidence that Petitioners were harassed and threatened on
10 account of their religion, Petitioners fail to demonstrate
11 that the harassment rose to the level of persecution. With
12 regard to the six “attacks” that Das suffered, Das testified
13 that they were incidents similar to one in which “some
14 miscreants came [to his father’s home], . . . broke open the
15 door, . . . destroyed some papers[,] and threatened [his
16 father].” Such incidents are not sufficient to compel a
17 reasonable factfinder to find past persecution. See
18 Balachova v. Mukasey,
547 F.3d 374, 386 (2d Cir. 2008)
19 (holding that breaking down a door, searching and looting a
20 house, and detention did not “cross the line from harassment
21 to persecution”). Additionally, the only physical harm
22 Petitioners claim to have suffered is Das’s stabbing, which
6
1 the IJ found was not credibly established, and Deb’s alleged
2 assault, which the IJ found had not been shown to be based
3 on a protected ground. Accordingly, the IJ reasonably
4 concluded that Petitioners had not suffered past
5 persecution.
6 B. Well-Founded Fear of Persecution
7 Because Petitioners failed to demonstrate that they
8 suffered past persecution, they were not entitled to a
9 presumption of a well-founded fear of future persecution.
10 See 8 C.F.R. § 1208.13(b). To the extent Petitioners argue
11 that they have demonstrated a pattern or practice of
12 persecution against Hindus in Bangladesh, the agency
13 considered Petitioners’ evidence and reasonably found that
14 they failed to demonstrate a pattern or practice sufficient
15 to qualify for withholding of removal. See Santoso v.
16 Holder, 580 F.3d 110, 112 (2d Cir. 2009); cf. Mufied v.
17 Mukasey,
508 F.3d 88, 91 (2d Cir. 2007). Moreover, it was
18 not improper for the agency to conclude that Petitioners’
19 testimony that several members of their family, who were
20 Hindu, continued to live in Bangladesh without incurring any
21 harassment or mistreatment weighed against their claim of a
22 well-founded fear of persecution. See Melgar de Torres v.
7
1 Reno, 191 F.3d 307, 313 (2d Cir. 1999) (finding that asylum
2 applicant’s well-founded fear of persecution claim was
3 diminished where her mother and daughters continued to live
4 in her native country without harm). Thus, substantial
5 evidence supports the agency’s finding that Petitioners
6 failed to establish a pattern or practice of persecution
7 against Hindus in Bangladesh.
8 The IJ also reasonably found that Petitioners failed to
9 demonstrate that they have a well-founded fear of
10 persecution based on Das’s alleged political affiliation
11 with the Awami League. As the BIA correctly noted, the IJ
12 found that Das’s testimony relating to that affiliation was
13 “vague and unspecific” and lacking in corroborating
14 evidence. Petitioners fail either to address the agency’s
15 findings in this respect or to point to evidence in the
16 record supporting their claim that Das is affiliated with
17 the Awami League. A reasonable adjudicator would not be
18 compelled to conclude that petitioners had a well founded
19 fear of future persecution, and the denial of petitioners’
20 applications was therefore not erroneous.
21 For the foregoing reasons, the petition for review is
22 DENIED in part and DISMISSED in part. As we have completed
8
1 our review, any stay of removal that the Court previously
2 granted in this petition is VACATED, and any pending motion
3 for a stay of removal in this petition is DISMISSED as moot.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
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