Majidi v. Gonzales, Docket No. 03-4241.

• Decision Date: 15 November 2005
• Docket Number: Docket No. 03-4241.
• Citation: 430 F.3d 77
• Parties: Sk Shahriair MAJIDI, Petitioner, v. Alberto GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

430 F.3d 77

Sk Shahriair MAJIDI, Petitioner, v. Alberto GONZALES,^* Attorney General of the United States, Respondent.

Docket No. 03-4241.

United States Court of Appeals, Second Circuit.

Argued: April 4, 2005.

Decided: November 15, 2005.

Alan Michael Strauss, Rodriguez & Plotnik, New York, NY for Petitioner.

Madelyn E. Johnson, Assistant United States Attorney (Beverly M. Russell, Assistant United States Attorney, of counsel; Kenneth L. Wainstein, United States Attorney for the District of the District of Columbia, on the brief), United States Attorney's Office for the District of the District of Columbia, Washington, DC for Respondent.

Before: CABRANES and RAGGI, Circuit Judges, and SAND,^** District Judge.

JOSÉ A. CABRANES, Circuit Judge.

Petitioner Majidi, a native and citizen of Bangladesh, petitions this Court for review of a January 10, 2003 order of the Board of Immigration Appeals ("BIA") affirming a November 27, 2001 decision by an immigration judge ("IJ") that denied petitioner's application for asylum and withholding of removal. The IJ found petitioner's account of the persecution he allegedly suffered in Bangladesh not credible. Underscoring the deference we must accord to such credibility findings, we deny the petition for review.

BACKGROUND

We assume that the parties are familiar with the facts, the procedural history, and the scope of the issues presented on appeal.

Petitioner's asylum claim rests on the persecution he allegedly suffered in Bangladesh as a member of the Jatiya Party, and we set forth some of the details of that persecution here. Petitioner asserts that he joined the party in 1986 and was elected general secretary of the party's local branch in 1989. At the time petitioner joined it and until 1990, the Jatiya Party governed the country. The crux of petitioner's asylum claim is that members of the Bangladesh Nationalist Party ("BNP") persecuted him on several occasions after the BNP gained control of the government in 1991. Specifically, petitioner was arrested in 1991 and again in 1992. Although he was allegedly placed under police surveillance, petitioner continued to organize meetings of Jatiya Party members in private homes. He testified that, in 1993, the police "came to my home and abused me and threatened me that I would not be able to hold such meetings even indoors." In 1994, however, BNP members allegedly broke up another meeting at petitioner's home. A confrontation ensued, and petitioner, having suffered an injury, escaped the scene. Not until the following day did petitioner learn that his brother—who apparently arrived at petitioner's home after petitioner had fled from it—had been fatally stabbed there by BNP members. Fearing for his own life, petitioner then decided to leave Bangladesh.

The IJ found petitioner not credible, relying on several findings: (1) the "dramatically different" accounts of the 1993 incident in the supplement to petitioner's asylum application and in petitioner's testimony; (2) the inconsistencies in the timing of the events surrounding the death of petitioner's brother; (3) the lack of evidence to corroborate the brother's death; (4) the inconsistencies in petitioner's accounts of his departure from Bangladesh and of his arrival to the United States; (5) the inconsistencies between petitioner's testimony and the Department of State report regarding conditions in Bangladesh; and (6) petitioner's "extremely unresponsive and evasive" demeanor at his asylum hearing. In affirming the IJ's decision, the BIA concluded that the first of the grounds supporting the IJ's adverse credibility finding was, standing alone, "material and dispositive."

Petitioner now challenges the BIA's affirmance of the IJ's adverse credibility finding.

DISCUSSION

Where, as here, the BIA affirmed the IJ's decision to deny asylum by brief order, we review the IJ's decision rather than the BIA's order. See Yu Sheng Zhang v. DOJ, 362 F.3d 155, 158-59 (2d Cir.2004).

It cannot be overstated that our review of the IJ's credibility findings is highly deferential, see Zhou Yun Zhang v. INS, 386 F.3d 66, 73-74 (2d Cir.2004), and the IJ's "administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary," 8 U.S.C. § 1252(b)(4)(B); see also Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003). "Where the IJ's adverse credibility finding is based on specific examples in the record of inconsistent statements by the asylum applicant about matters material to his claim of persecution, or on contradictory evidence or inherently improbable testimony regarding such matters, a reviewing court will generally not be able to conclude that a reasonable adjudicator was compelled to find otherwise." Zhou Yun Zhang, 386 F.3d at 74 (citations and internal quotation marks omitted). We require, however, that the IJ's reasons for an adverse credibility finding be "specific" and "cogent," Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (internal quotation marks omitted), and that a "`legitimate nexus'" exist between these reasons and "petitioner's claim of persecution," Xu Duan Dong v. Ashcroft, 406 F.3d 110, 112 (2d Cir.2005) (quoting Secaida-Rosales, 331 F.3d at 307). In summary, the "exceedingly narrow" scope of our review, Carranza-Hernandez v. INS, 12 F.3d 4, 7 (2d Cir.1993), is designed to ensure merely that "credibility findings are based upon neither a misstatement of the facts in the record nor bald speculation or caprice," Zhou Yun Zhang, 386 F.3d at 74. Our role does not extend to "hypothesiz[ing] excuses for the inconsistencies" in an asylum applicant's testimony. Id.

In this case, we conclude that the first discrepancy identified by the IJ—petitioner's "dramatically different" accounts of the 1993 incident—offers substantial evidence in support of the IJ's adverse credibility finding. On March 4, 1999, petitioner submitted a "supplemental statement" in support of his asylum application, recounting four incidents of persecution that he suffered "due to ... membership in" the Jatiya Party. Only a single incident occurred in 1993, and petitioner described the event as follows: "[M]embers of the BNP came to my home and ransacked my house in front of my family. They insulted my family and asked for the whereabouts of my uncle and me." This depiction differs substantially from the account offered in petitioner's direct testimony at his September 8, 2000 asylum hearing. When his counsel inquired about the details of the 1993 incident, petitioner stated: "In '93, last time [BNP members] came to my home and abused me and threatened me that I would not be able to hold [party] meetings even indoors." Petitioner's testimony at the hearing made no reference to any other incidents of persecution that occurred in 1993. Accordingly, the IJ concluded that petitioner's accounts of the 1993 incident are inconsistent: while petitioner's "supplemental statement" asserted that BNP members "ransacked" petitioner's home in his absence, petitioner's asylum hearing testimony indicated that he was personally "abused" and "threatened" by the BNP.

On appeal, petitioner challenges the IJ's finding that these two accounts were inconsistent, principally on the ground that petitioner was describing two separate occurrences. He argues that "it is not reasonable for the IJ to have concluded that Mr. Majidi was discussing only one incident without first having asked him if the incidents were the same and, if they were, without having given Mr. Majidi an opportunity to provide an explanation."

Petitioner's argument misapprehends the degree of deference we must afford to the IJ's credibility findings. A petitioner "must do more than offer a `plausible' explanation...