Filed: Nov. 01, 2013
Latest Update: Mar. 02, 2020
Summary: 12-1911 Razik v. Holder BIA Mulligan, IJ A088 524 528 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: 12-1911 Razik v. Holder BIA Mulligan, IJ A088 524 528 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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12-1911
Razik v. Holder
BIA
Mulligan, IJ
A088 524 528
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 1st day of November, two thousand thirteen.
5
6 PRESENT:
7 RALPH K. WINTER,
8 GUIDO CALABRESI,
9 PETER W. HALL,
10 Circuit Judges.
11 _____________________________________
12
13 MOHAMED RAISUDEEN MOHAMED RAZIK,
14 Petitioner,
15
16 v. 12-1911
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Joshua Bardavid, New York, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Stephen J. Flynn,
27 Assistant Director; Robert M.
28 Stalzer, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 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 Mohamed Raisudeen Mohamed Razik, a native and citizen
6 of Sri Lanka, seeks review of an April 24, 2012, decision of
7 the BIA affirming the August 17, 2010, decision of
8 Immigration Judge (“IJ”) Thomas Mulligan, which denied his
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Mohamed
11 Raisudeen Mohamed Razik, No. A088 524 528 (B.I.A. Apr. 24,
12 2012), aff’g No. A088 524 528 (Immig. Ct. N.Y. City Aug. 17,
13 2010). We assume the parties’ familiarity with the
14 underlying facts and procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the decisions of both the IJ and the BIA. See Yun-Zui Guan
17 v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam).
18 The applicable standards of review are well-established.
19 See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v.
20 Mukasey,
534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam).
21 For applications such as Razik’s, governed by the
22 amendments made to the Immigration and Nationality Act by
23 the REAL ID Act of 2005, the agency may, “[c]onsidering the
2
1 totality of the circumstances,” base a credibility finding
2 on the plausibility of an applicant’s account, as well as
3 inconsistencies in his statements, without regard to whether
4 they go “to the heart of the applicant’s claim.” 8 U.S.C.
5 §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); see Xiu Xia Lin v.
6 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam). We
7 “defer [ ] to an IJ’s credibility determination unless, from
8 the totality of the circumstances, it is plain that no
9 reasonable fact-finder could make such an adverse
10 credibility ruling.” Xiu Xia
Lin, 534 F.3d at 167. In this
11 case, the agency reasonably based its adverse credibility
12 finding on Razik’s negative demeanor, the lack of
13 credibility of his claim that the Sri Lankan army suspected
14 him of supporting the Liberation Tigers of Tamil Eelam
15 (“LTTE”), and a failure to provide reasonably available
16 corroborating evidence.
17 The IJ’s observations regarding Razik’s demeanor while
18 testifying supports the agency’s adverse credibility
19 determination. We accord particular deference to the trier
20 of fact’s assessment of demeanor, as he was in the best
21 position to observe Razik’s manner while testifying. See Tu
22 Lin v. Gonzales,
446 F.3d 395, 400 (2d Cir. 2006). During
3
1 the merits hearing, the IJ carefully observed Razik’s
2 testimony throughout direct and cross-examination and found
3 Razik’s overall demeanor negative throughout, in part due to
4 his persistent, abnormally high anxiety, and his periodic
5 glances at the IJ, which the IJ interpreted as attempts to
6 gauge the reaction to the testimony. The IJ specifically
7 underscored Razik’s difficulty providing details and lack of
8 a natural flow when describing LTTE members’ damaging
9 shelving in his uncle’s shop, and his contrived effort to
10 convey the appearance of sadness by lowering his head and
11 repeatedly wiping his face. While Razik takes issue with
12 the IJ’s characterization of his demeanor as insincere,
13 where, as here, the agency’s inference “is tethered to the
14 evidentiary record, [this Court] will accord deference to
15 the finding.” Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d
16 Cir. 2007); see also Tu
Lin, 446 F.3d at 400-01.
17 Razik also argues that the IJ should have given him
18 notice of the demeanor issue and an opportunity to explain.
19 This argument also fails. Razik relies on Zhi Wei Pang v.
20 Bureau of Citizenship and Immigration Services,
448 F.3d
21 102, 107 (2d Cir. 2006), and Ming Shi Xue v. BIA,
439 F.3d
22 111, 118 (2d Cir. 2006) to support his contention, but these
4
1 cases require IJs to inform petitioners about
2 non-self-evident discrepancies in their testimony so that
3 they may offer explanations for apparent inconsistencies, an
4 obligation that does not extend to an IJ’s demeanor
5 findings. See 448 F.3d at 107; 439 F.3d at 118.
6 The BIA also properly declined to consider the
7 affidavit submitted by counsel on appeal. The BIA reviews
8 only the record before it and generally may not supplement
9 the record with new evidence. See Belotaja v. Gonzales, 484
10 F.3d 619, 624 (2d Cir. 2007) (citing 8 C.F.R.
11 § 1003.1(d)(3)(iv)). Razik relies on Kulhawik v. Holder, in
12 which we determined that the BIA erred when it refused to
13 consider an affidavit submitted by counsel before the IJ.
14
571 F.3d 296, 298 (2d Cir. 2009) (per curiam). In the
15 present case, however, Razik’s counsel submitted his
16 affidavit before the BIA, and not the IJ. Hence, the ruling
17 in Belotaja controls.
18 The agency also reasonably based its adverse
19 credibility determination, in part, on Razik’s failure to
20 credibly explain why he had amended his application to state
21 that he feared persecution from the Sri Lankan army. See
22 Majidi v. Gonzales,
430 F.3d 77, 80-81 (2d Cir. 2005)
23 (holding that an agency need not credit an applicant’s
5
1 explanations for inconsistencies in the record unless those
2 explanations would compel a reasonable fact-finder to do
3 so); see also 8 U.S.C. § 1158(b)(1)(B)(iii) (noting that the
4 agency may consider the inherent plausibility of the
5 applicant’s account in assessing credibility); Xiu Xia Lin,
6 534 F.3d at 166. Although Razik contended that he amended
7 his application because the army had begun to arrest all
8 perceived LTTE supporters following LTTE’s defeat, the IJ
9 reasonably found this explanation suspicious and incredible
10 because the army had not harassed his uncle, who paid the
11 protection money and whose name appeared on the LTTE
12 receipts. See
Majidi, 430 F.3d at 80-81; see also 8 U.S.C.
13 § 1158(b)(1)(B)(iii).
14 Having called Razik’s credibility into question, the IJ
15 did not err in finding his credibility further undermined by
16 the absence of corroborative evidence. See 8 U.S.C.
17 § 1158(b)(1)(B)(ii); Biao Yang v. Gonzales,
496 F.3d 268,
18 273 (2d Cir. 2007) (per curiam). Although Razik submitted
19 letters from his family and friends, the agency reasonably
20 accorded them little weight due to the inability to
21 cross-examine their authors. See Matter of H–L–H & Z–Y–Z–,
22 25 I. & N. Dec. 209, 215 (B.I.A. 2010), rev'd on other
23 grounds by Hui Lin Huang v. Holder,
677 F.3d 130 (2d Cir.
6
1 2012). In addition, the agency reasonably noted that the
2 scar on Razik’s face, without more, did not demonstrate that
3 a LTTE cadre assaulted him. See Xiao Ji Chen v. U.S. Dep’t
4 of Justice, 471 F.3d 315, 342 (2d Cir. 2006). And, the
5 agency did not err in finding that Razik’s return to Sri
6 Lanka for three weeks to conduct a financial transaction
7 when he claimed to fear for his life, undermined his
8 credibility. See Kone v. Holder,
596 F.3d 141, 150-51 (2d
9 Cir. 2010).
10 By examining these factors in conjunction with the
11 negative demeanor findings, the agency sufficiently examined
12 the totality of the circumstances to reach its adverse
13 credibility determination. See Xiu Xia
Lin, 534 F.3d at
14 167. Nor does the record support Razik’s assertion that the
15 agency did not evaluate the totality of the circumstances
16 and violated his due process rights by truncating his
17 testimony. Throughout Razik’s testimony, the IJ repeatedly
18 asked him to provide greater detail and offered specific
19 examples of the types of details he sought. More tellingly,
20 Razik’s counsel explicitly declined an opportunity for
21 redirect, indicating that Razik had nothing more to add to
22 his case at that time.
23
7
1 The adverse credibility determination in this case
2 necessarily precluded Razik’s success on his claims for
3 asylum, withholding of removal, and CAT relief, as those
4 claims shared the same factual predicate. See Paul v.
5 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v.
6 U.S. Dep't of Justice,
426 F.3d 520, 523 (2d Cir. 2005).
7 For the foregoing reasons, the petition for review is
8 DENIED. As we have completed our review, any stay of
9 removal that the Court previously granted in this petition
10 is VACATED, and any pending motion for a stay of removal in
11 this petition is DISMISSED as moot. Any pending request for
12 oral argument in this petition is DENIED in accordance with
13 Federal Rule of Appellate Procedure 34(a)(2), and Second
14 Circuit Local Rule 34.1(b).
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
8
