Islam v. Holder , 368 F. App'x 241 ( 2010 )

09-0133-ag
Islam v. Holder
BIA
Nelson, IJ
A071 497 062
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 5 th day of March, two thousand ten.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 GUIDO CALABRESI,
9 REENA RAGGI,
10 Circuit Judges.
11 ___________________________________________
12
13 MOHAMMAD ANWARUL ISLAM,
14 Petitioner,
15
16 v. 09-0133-ag
17 NAC
18
19 ERIC H. HOLDER, JR.,
20 UNITED STATES ATTORNEY GENERAL,
21 Respondent * .
22 _______________________________________
23
24 FOR PETITIONER: Thomas V. Massucci, New York, New
25 York.
*
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 the Respondent in this case.
1 F O R RESPONDENT: Tony West, Assistant Attorney
2 General, Civil Division; Barry J.
3 Pettinato, Assistant Director;
4 Katharine E. Clark, Trial Attorney,
5 Office of Immigration Litigation,
6 U.S. Department of Justice,
7 Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 decision of the Board of Immigration Appeals (BIA), it is
11 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
12 review is DENIED.
13 Petitioner Mohammad Anwarul Islam, a native and citizen
14 of Bangladesh, seeks review of a December 12, 2008 order of
15 the BIA affirming the February 20, 2007 decision of
16 Immigration Judge (IJ) Barbara A. Nelson, denying his
17 application for asylum, withholding of removal, and relief
18 under the Convention Against Torture (CAT). In re Mohammad
19 Anwarul Islam, No. A071 497 062 (B.I.A. Dec. 12, 2008),
20 aff’g No. A071 497 062 (Immig. Ct. N.Y. City Feb. 20, 2007).
21 We assume the parties’ familiarity with the underlying facts
22 and procedural history in this case.
23 When the BIA adopts the decision of the IJ and
24 supplements the IJ’s decision, this Court reviews the
25 decision of the IJ as supplemented by the BIA. See Yan Chen
26 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review
2
1 the agency’s factual findings, including adverse credibility
2 determinations, under the substantial evidence standard.
3 8 U.S.C. § 1252(b)(4)(B); see, e.g., Corovic v. Mukasey, 519
4 F.3d 90, 95 (2d Cir. 2008). Questions of law and the
5 application of law to undisputed fact are reviewed de novo.
6 Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
7 Islam’s claim that the IJ did not explicitly make an
8 adverse credibility finding is without merit. Although an
9 IJ must “decide explicitly” whether an applicant is
10 credible, see Diallo v. INS, 232 F.3d 279, 290 (2d Cir.
11 2000), no magic words are required. The IJ’s finding that
12 Islam’s testimony regarding the alleged charges against him
13 was “implausible” is sufficiently explicit.
14 The adverse credibility finding is also supported by
15 substantial evidence. In reviewing an adverse credibility
16 determination based on an applicant’s implausible testimony,
17 we “review the entire record, not whether each unusual or
18 implausible feature of the account can be explained or
19 rationalized.” Ying Li v. BCIS, 529 F.3d 79, 82 (2d Cir.
20 2008).
21 The IJ reasonably found suspicious the circumstances of
22 the arrest warrant. Islam testified that he was present in
3
1 the United States when the offenses alleged in the arrest
2 warrant occurred. He admitted that he could easily prove
3 this fact and that he had a lawyer in Bangladesh. He
4 claimed, however, that he had not attempted to refute the
5 allegations and had not even discussed the matter with his
6 attorney in Bangladesh. When asked why he had never
7 attempted to refute the allegations or speak with his
8 attorney, he testified that he was “too busy” working.
9 Islam also failed to provide any explanation for why
10 charges would be filed against him over fourteen years after
11 he left Bangladesh. Further casting suspicion on the
12 warrant’s timing is that the alleged charges occurred a few
13 days after the BIA issued a decision denying Islam’s first
14 motion to reopen. The IJ reasonably found this timing “oddly
15 coincidental.”
16 The IJ also did not err in declining to afford
17 evidentiary weight to the alleged warrant. We have made
18 clear that the authentication provisions set forth at
19 8 C.F.R. § 287.6 are not the exclusive means for
20 authenticating a document. See Cao He Lin v. U.S. Dep’t of
21 Justice, 428 F.3d 391, 404-05 (2d Cir. 2005). Nonetheless,
22 we “afford IJs considerable flexibility in determining the
4
1 authenticity of such documents from the totality of the
2 evidence.” Shunfu Li v. Mukasey, 529 F.3d 141, 149 (2d Cir.
3 2008). The agency properly considered the totality of the
4 evidence here, including Islam’s testimony, and reasonably
5 concluded that the warrant had not been authenticated “in
6 any way.” See id.; see also Xiao Ji Chen v. U.S. Dep’t of
7 Justice, 471 F.3d 315, 342 (2d Cir. 2006) (holding that the
8 weight afforded to the applicant’s evidence in immigration
9 proceedings lies largely within the discretion of the IJ). **
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, any stay of
12 removal that the Court previously granted in this petition
13 is VACATED, and any pending motion for a stay of removal in
14 this petition is DISMISSED as moot. Any pending request for
15 oral argument in this petition is DENIED in accordance with
16 Federal Rule of Appellate Procedure 34(a)(2), and Second
17 Circuit Local Rule 34(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
21
22
**
Islam does not challenge the agency’s denial of his
request for CAT relief in his brief to this Court.
5