Filed: Jul. 07, 2016
Latest Update: Mar. 03, 2020
Summary: 14-1234 Tahir v. Lynch BIA Nelson, IJ A088 185 601 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 NOTA
Summary: 14-1234 Tahir v. Lynch BIA Nelson, IJ A088 185 601 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..
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14-1234
Tahir v. Lynch
BIA
Nelson, IJ
A088 185 601
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.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
7th day of July, two thousand sixteen.
PRESENT:
JON O. NEWMAN,
BARRINGTON D. PARKER,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
MUHAMMAD AHTESHAM TAHIR,
Petitioner,
v. 14-1234
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Amy Nussbaum Gell, New York,
New York.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Alison
Marie Igoe, Lyle D. Jentzer, Senior
Counsel for National Security,
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.
Petitioner Muhammad Ahtesham Tahir, a native of Iran and
citizen of Pakistan, seeks review of a March 26, 2014, decision
of the BIA affirming an August 7, 2012, decision of an
Immigration Judge (“IJ”) denying Tahir’s application for
asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Muhammad Ahtesham Tahir, No.
A088 185 601 (B.I.A. Mar. 26, 2014), aff’g No. A088 185 601
(Immig. Ct. N.Y. City Aug. 7, 2012). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Under the circumstances of this case, we have reviewed both
the IJ’s and the BIA’s opinions “for the sake of completeness.”
Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
2006). Tahir does not challenge the agency’s pretermission of
his asylum application as untimely. See Yueqing Zhang v.
Gonzales,
426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005). We
thus consider only the agency’s denial of withholding of removal
and CAT relief.* The applicable standards of review are well
* Contrary to the BIA’s and Government’s positions, Tahir
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established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
Adverse Credibility Determination
The agency may, “[c]onsidering the totality of the
circumstances, . . . base a credibility determination on the
demeanor, candor, or responsiveness of the applicant,” and
inconsistencies in the record evidence “without regard to
whether” those inconsistencies go “to the heart of the
applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
Lin, 534 F.3d at 163-64. Substantial evidence supports the
agency’s determination that Tahir was not credible as to his
claim that Sunni extremists in Pakistan threatened and attacked
him in the 1990s for preparing propaganda materials for a Shia
organization.
The IJ reasonably relied on Tahir’s demeanor, noting that
he was evasive and hesitant while testifying. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); see also Majidi v. Gonzales, 430 F.3d 77,
81 n.1 (2d Cir. 2005). That finding is supported by the record.
The IJ’s demeanor finding and the overall credibility
determination are bolstered by record inconsistencies. See Li
Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006);
see also Xiu Xia
Lin, 534 F.3d at 165-67 & n.3. Tahir made
exhausted his challenge to the denial of CAT relief by
challenging the IJ’s adverse credibility determination.
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inconsistent statements regarding whether he is Sunni, whether
he knows the differences between the Sunnis and Shias, and
whether he knew the propaganda materials he created promoted
hostility between these two sects of Islam. Tahir further made
inconsistent statements as to whether he was unable to see his
assailant’s face because the attack happened quickly or because
the assailant wore a mask. And he was inconsistent as to
whether his assailant dropped the knife he used during the
attack or Tahir’s father pried the knife from the assailant’s
hands. Tahir did not provide compelling explanations for these
inconsistencies. See Majidi, 430 F.3d at 80.
Given the demeanor and inconsistency findings, the
agency’s adverse credibility determination is supported by
substantial evidence. 8 U.S.C. § 1158(b)(1)(B)(iii). That
finding is dispositive of withholding of removal and CAT relief.
See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
Material Support Bar
Although we need not consider the agency’s finding that
Tahir provided material support to a terrorist organization for
purposes of determining his eligibility for withholding of
removal or CAT relief, see INS v. Bagamasbad, 429 U.S. 24, 25
(1976), we have reviewed that determination as it may serve to
bar Tahir from future admission to the United States, see
4
8 U.S.C. § 1182(a)(3)(B)(iv)(VI). An alien engages in
terrorist activity if he “commit[s] an act that [he] knows, or
reasonably should know, affords material support, including .
. . communications . . . to a terrorist organization.” 8 U.S.C.
§ 1182(a)(3)(B)(iv)(VI). “[T]errorist organization” is
defined as a group so designated by the Secretary of State, or
as “a group of two or more individuals, whether organized or
not, which engages in” terrorist activities. 8 U.S.C.
§ 1182(a)(3)(B)(vi). For those terrorist organizations not
designated as such by the Secretary of State, the material
support bar does not apply if the alien “can demonstrate by clear
and convincing evidence that [he] did not know, and should not
reasonably have known, that the organization was a terrorist
organization.” 8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(dd).
The agency reasonably concluded that Tahir provided
material support to a terrorist organization because he
designed and printed communications materials, such as
brochures, posters, and banners, for the Sipah-e-Sahaba (“SSP”)
in Pakistan in the mid-1990s. See 8 U.S.C.
§ 1182(a)(3)(B)(iv)(VI). Although the SSP had not been
designated a terrorist organization at that time, the record
evidence demonstrates that it was one because it sought to
violently convert or suppress Shias, attacked police personnel,
5
and indiscriminately fired on Shias saying their prayers. See
8 U.S.C. § 1182(a)(3)(B)(vi)(III). Tahir did not provide
clear and convincing evidence that he was unaware that the SSP
was a terrorist organization. In fact, he admitted that he knew
sectarian violence was problematic at the time, that he was
asked to produce anti-Shia materials for the SSP, and that he
knew the group was violent (he feared the group would threaten
to torture, kidnap, or kill him for working with a Shia
organization). See 8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(dd).
Moreover, contrary to Tahir’s argument, the IJ considered
whether a duress exception to the material support bar applied
and reasonably determined that it did not given Tahir’s
testimony that he would have produced materials for the SSP even
if he had not needed the income because “business is business.”
See Ay v. Holder, 743 F.3d 317, 320 (2d Cir. 2014) (remanding
because BIA had not addressed whether the material support bar
includes a duress exception). Accordingly, we find no error
in the agency’s determination that the material support bar
applies to Tahir. See 8 U.S.C. § 1182(a)(3)(B)(iv)(VI).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
6
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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