Filed: Oct. 17, 2012
Latest Update: Feb. 12, 2020
Summary: 11-3699 BIA Bhuyan v. Holder Hom, IJ A200 026 432 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 NOTAT
Summary: 11-3699 BIA Bhuyan v. Holder Hom, IJ A200 026 432 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 NOTATI..
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11-3699 BIA
Bhuyan v. Holder Hom, IJ
A200 026 432
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 New York Law School, 185
3 West Broadway, in the City of New York, on the 17th day of
4 October, two thousand twelve.
5
6 PRESENT:
7 Dennis Jacobs,
8 Chief Judge,
9 Robert A. Katzmann,
10 Debra A. Livingston,
11 Circuit Judges.
12 _____________________________________
13
14 MIRAJ BHUYAN,
15 Petitioner,
16
17 v. 11-3699
18 RAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Thomas V. Massucci, New York, New
25 York.
26
27 FOR RESPONDENT: Stuart Delery, Acting Assistant
28 Attorney General; Linda S. Wernery,
29 Assistant Director; Kerry A. Monaco,
30 Trial Attorney, Office of
31 Immigration Litigation, United
32 States Department of Justice,
33 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
4 is DENIED.
5
6 Miraj Bhuyan, a native and citizen of Bangladesh, seeks
7 review of an August 31, 2011, order of the BIA affirming the
8 August 24, 2009, decision of Immigration Judge (“IJ”) Sandy
9 K. Hom, which denied his application for asylum, withholding
10 of removal, and relief under the Convention Against Torture
11 (“CAT”). In re Miraj Bhuyan, No. A200 026 432 (B.I.A. Aug.
12 31, 2011), aff’g No. A200 026 432 (Immig. Ct. N.Y.C. Aug.
13 24, 2009). We assume the parties’ familiarity with the
14 underlying facts, the procedural history, and the issues
15 presented for review.
16
17 Under the circumstances of this case, we have reviewed
18 the decision of the IJ as modified and supplemented by the
19 BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.
20 2005); Xue Hong Yang v. U.S. Dep’t of Justice,
426 F.3d 520,
21 522 (2d Cir. 2005). The applicable standards of review are
22 well established. See 8 U.S.C. § 1252(b)(4)(B); see also
23 Yanqin Weng v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
24 Because Bhuyan does not challenge the agency’s denial of CAT
25 relief, and as the BIA declined to consider the IJ’s
26 alternate basis for denying asylum and withholding of
27 removal, we consider only whether the agency’s adverse
28 credibility determination supports the denial of asylum and
29 withholding of removal.
30
31 For applications such as Bhuyan’s, governed by the
32 amendments made to the Immigration and Nationality Act by
33 the REAL ID Act of 2005, the agency may, considering the
34 totality of the circumstances, base a credibility finding on
35 the applicant’s “demeanor, candor, or responsiveness,” the
36 plausibility of his account, and inconsistencies in his
37 statements, without regard to whether they go “to the heart
38 of the applicant’s claim.” See 8 U.S.C. § 1158(b)(1)(B)
39 (iii); Xiu Xia Lin v. Mukasey,
534 F.3d 162, 167 (2d Cir.
40 2008). We defer to an IJ’s credibility determination
41 “unless, from the totality of the circumstances, it is plain
42 that no reasonable fact-finder could make” such a ruling.
43 Xiu Xia
Lin, 534 F.3d at 167.
44
45
2
1 Here, substantial evidence supports the IJ’s adverse
2 credibility determination. The IJ relied in large part on
3 Bhuyan’s submission of two fraudulent documents–-letters
4 purportedly authored by two officials from Bhuyan’s
5 political party, the Awami League, on his behalf. Documents
6 like Bhuyan’s letters, which are submitted in support of an
7 asylum claim,1 are subject to the falsus in uno, falsus in
8 omnibus maxim under which, once an IJ concludes that a
9 document is false, he or she is “free to deem suspect other
10 documents (and to disbelieve other testimony) that depend
11 for probative weight upon [the applicant’s] veracity.”
12 Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007).
13
14 The IJ gave a number of reasons for doubting the
15 documents’ authenticity. For instance, one of the dates in
16 the letters had been altered to read “May 07, 2004” instead
17 of “May 06, 2004.” A Department of Homeland Security
18 Forensic Document Laboratory confirmed that such alteration
19 had, in fact, occurred. The IJ also found it odd that
20 copies of the letters–-which Bhuyan testified were partial
21 translations of the original documents–-contained this same
22 alteration, rendering the documents suspect because an
23 alteration in the English portion of the original should not
24 be visible in the English portion of the translated
25 document. Bhuyan now asserts that he was mistaken when he
26 testified that the documents had been translated; the
27 purported “translations” were actually exact copies of the
28 originals, except that they were printed on English
29 letterhead rather than Bengali letterhead.
30
31 Bhuyan urges that the IJ’s decision therefore rested on
32 a factual error. We disagree for several reasons. [1]
33 Bhuyan never raised the issue with either the IJ or the BIA,
34 which should preclude him from arguing it on appeal. See 8
35 U.S.C. § 1252(d)(1) (mandating that an alien seeking
36 withholding of removal exhaust “all administrative remedies
1
Bhuyan asserts that only inauthentic government-
issued documents can support an adverse credibility
finding. However, see, e.g., Siewe v. Gonzales, 480 F.3d
160, 170-71 (2d Cir. 2007) (denying petition and
upholding IJ’s adverse credibility determination based in
part on submission of inauthentic support letters
purportedly drafted by another political activist).
3
1 available to the alien as of right”). [2] Bhuyan’s own
2 testimony was the source of the alleged misstatement and
3 compelled the conclusion with which he takes issue on
4 appeal. [3] Even if his new explanation were credited
5 (thereby undercutting one basis for the IJ’s adverse
6 credibility determination), that explanation would provide
7 an additional basis for the IJ’s finding--a direct
8 contradiction of Bhuyan’s own testimony on a highly material
9 subject.
10
11 But we need not consider these implications because the
12 IJ’s concerns about document authenticity went well beyond
13 this translation issue. The IJ also found suspicious that
14 the two letters were identical in almost every respect, with
15 the bodies of the letters drafted in haec verba and
16 containing the exact same formatting; the letters contained
17 different dates, despite Bhuyan’s testimony that his brother
18 had procured them from the same office on the same day; and
19 a single Awami League political office is alleged to have
20 printed the letter on the letterhead of another office.
21 Bhuyan had an opportunity to allay these concerns by
22 producing an affidavit by his brother explaining how he
23 obtained the letters or by offering the envelope that
24 enclosed them. He failed to do so.
25
26 On appeal, Bhuyan challenges the IJ’s conclusion about
27 the fraudulent nature of these documents, and instead urges
28 this Court to adopt Bhuyan’s innocent explanations: that one
29 non-English-speaking Awami League officer simply copied the
30 other’s letter; that the alteration was attributable to the
31 author’s correction of a typographical error; and that the
32 letters contained different dates because Bhuyan’s brother
33 received the signed letters from the two officers on
34 different dates. But a petitioner “must do more than offer
35 a plausible explanation” to secure relief; “he must
36 demonstrate that a reasonable fact-finder would be compelled
37 to credit his testimony.” Majidi v. Gonzales, 430 F.3d 77,
38 80-81 (2d Cir. 2005) (internal quotation marks omitted).
39
40 The IJ’s credibility finding was grounded in specific
41 concerns about two documents central to Bhuyan’s claim for
42 asylum and withholding of removal, while Bhuyan’s
43 explanations (although perhaps not wholly implausible)
44 nevertheless left important questions unanswered. The IJ’s
4
1 decision not to credit these explanations (which Bhuyan
2 failed to clearly articulate at the hearing) is insufficient
3 to warrant remand, especially given the “highly deferential”
4 nature of our review. Id. at 79.
5
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, any stay of
8 removal that the Court previously granted in this petition
9 is VACATED, and any pending motion for a stay of removal in
10 this petition is DISMISSED as moot.
11
12 FOR THE COURT:
13 CATHERINE O’HAGAN WOLFE, CLERK
14
15
16
17
5
