Opinion
20-73050
10-21-2022
MOHAMMAD MAIN UDDIN, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted October 19, 2022 [**] Portland, Oregon
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A206-908-826
Before: BADE and SANCHEZ, Circuit Judges, and LEFKOW, [***] District Judge.
MEMORANDUM [*]
Mohmmad Main Uddin (Uddin), a native and citizen of Bangladesh, petitions for review of a Board of Immigration Appeals' (BIA) order affirming the denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
I.
We review the denial of asylum, withholding of removal, and CAT relief for substantial evidence, meaning that "[t]o reverse the BIA, we must determine that the evidence not only supports [a contrary] conclusion, but compels it-and also compels the further conclusion that the petitioner meets the requisite standard for obtaining relief." Sanjaa v. Sessions, 863 F.3d 1161, 1164 (9th Cir. 2017) (alterations and emphases in original); see also 8 U.S.C. § 1252(b)(4)(B).
As to Uddin's asylum and withholding of removal claims, substantial evidence supports the BIA's determination that the source of harm was not and would not be the Bangladesh government or forces the government was unwilling or unable to control. See Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1062-70 (9th Cir. 2020) (en banc) (discussing the "unable or unwilling" standard); see also J.R. v. Barr, 975 F.3d 778, 782-84 (9th Cir. 2020) (same). The record discloses that Awami League student members, not government officials, attacked Uddin in 2014, and Uddin has not presented any evidence that these third-party attacks were directed by government officials.
Further, the record does not compel the conclusion that the Bangladesh government is unable or unwilling to respond to acts of political violence. Nor did the agency err in considering Uddin's failure to report the students' attacks. See Bringas-Rodriguez, 850 F.3d at 1069 (explaining "[w]hether a victim has reported or attempted to report violence or abuse to the authorities is a factor that may be considered, as is credible testimony or documentary evidence explaining why a victim did not report.").
As to Uddin's CAT claim, substantial evidence supports the BIA's denial of relief. First, Uddin did not show he would more likely than not face torture "'inflicted by or at the instigation of or with the consent or acquiescence of a public official acting in an official capacity or other person acting in an official capacity.'" B.R. v. Garland, 26 F.4th 827, 844 (9th Cir. 2022) (quoting 8 C.F.R. § 208.18). Uddin did not present compelling evidence that Bangladesh government officials inflicted harm on him themselves nor consented, acquiesced, or were willfully blind to the Awami League student members' conduct. Substantial evidence also supports the agency's finding that the submitted country conditions report did not show gross, flagrant, or mass violations of human rights within Bangladesh.
Nor does the record compel the conclusion that the students' attacks amount to torture. Uddin may have faced "cruel" or "degrading" acts, but not all such acts "amount to torture." Vitug v. Holder, 723 F.3d 1056, 1066 (9th Cir. 2013) ("'[T]orture is an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment that do not amount to torture.'") (quoting 8 C.F.R. § 208.18(a)(2)).
II.
Uddin also filed a motion to supplement the record. See Mot., ECF No. 17. Uddin concedes that we are generally required to decide his petition "only on the administrative record on which the order of removal is based." 8 U.S.C. § 1252(b)(4)(A). But he argues extraordinary and compelling circumstances are present warranting departure from this general rule. Specifically, he contends that on remand from the BIA, the immigration judge (IJ) did not provide him the opportunity to present additional testimony, evidence, or intervening caselaw.This characterization of the agency proceedings is inaccurate. The IJ afforded Uddin multiple opportunities to present additional evidence, but he declined to do so. We deny his motion to supplement the record.
At Uddin's initial merits hearing, the IJ denied Uddin's application based upon an adverse credibility determination along with a determination that Uddin's political party, the Bangladesh National Party (BNP), is a terrorist organization. Uddin appealed, and the BIA found clear error in the IJ's adverse credibility finding and remanded for further proceedings.
For similar reasons, we reject Uddin's contention that the IJ erred in relying on evidence from his initial hearing rather than a country conditions report attached to his motion to supplement. He did not seek to introduce such evidence on remand or move to reopen his case before the BIA. The agency appropriately resolved his petition on the basis of the administrative record before it.
PETITION DENIED.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
[**] The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
[***] The Honorable Joan H. Lefkow, United States District Judge for the Northern District of Illinois, sitting by designation.