Krivca v. Holder , 437 F. App'x 36 ( 2011 )

10-2895-ag
Krivca v. Holder
BIA
Straus, IJ
A099 559 559
A099 559 558
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 14th day of September, two thousand eleven.
5
6 PRESENT:
7 JON O. NEWMAN,
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 ______________________________________
12
13 LJAURA KRIVCA, BESNIK SALAI,
14 Petitioners,
15
16 v. 10-2895-ag
17 NAC
18 ERIC H. HOLDER, JR.,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONERS: Justin Conlon, North Haven, CT.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; David V. Bernal, Assistant
27 Director; Anthony C. Payne, Office
28 of Immigration Litigation; U.S.
29 Department of Justice, Washington,
30 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 Ljaura Krivca and her husband Besnik Salai, natives of
6 the former Yugoslavia and citizens of Macedonia, seek review
7 of a June 23, 2010, decision of the BIA affirming the May
8 29, 2008, decision of Immigration Judge (“IJ”) Michael W.
9 Straus, which denied their applications for asylum,
10 withholding of removal, and relief under the Convention
11 Against Torture (“CAT”). In re Ljaura Krivca, Besnik Salai,
12 Nos. A099 559 559/558 (BIA June 23, 2010), aff’g Nos. A099
13 559 559, A099 559/558 (Immig. Ct. Hartford, CT, May 29,
14 2008). We assume the parties’ familiarity with the
15 underlying facts and procedural history in this case.
16 Under the circumstances of this case, we have reviewed
17 both the IJ’s and the BIA’s opinions “for the sake of
18 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
19 2008). The applicable standards of review are well
20 established. See 8 U.S.C. § 1252(b)(4)(B); see also Corovic
21 v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008); Bah v. Mukasey,
22 529 F.3d 99, 110 (2d Cir. 2008).
2
1 Petitioners challenge the agency’s adverse credibility
2 determination on the grounds that the agency ignored
3 corroborating evidence, improperly discounted two summonses,
4 and erred in failing to require that Salai testify at the
5 hearing.
6 Petitioners first argue that the BIA erred in failing
7 to consider all of the materials in evidence. We reject
8 this argument. The BIA is not required to address
9 explicitly each piece of evidence. See Jian Hui Shao v.
10 Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (rejecting the
11 notion that the agency must “expressly parse or refute on
12 the record each individual argument or piece of evidence
13 offered by the petitioner”). Moreover, the record does not
14 compel the conclusion that the BIA failed to consider all of
15 Petitioners’ submissions. See Xiao Ji Chen v. U.S. Dep’t of
16 Justice, 471 F.3d 315, 336 n.17 (2d Cir. 2006) (presuming
17 that the agency “has taken into account all of the evidence
18 before [it], unless the record compellingly suggests
19 otherwise”).
20 Nor did the BIA err in finding that two summonses
21 purportedly issued to Krivca by the Macedonian authorities
22 were inauthentic and unreliable. Although an IJ may not
3
1 reject a document solely because it was not authenticated
2 pursuant to 8 C.F.R. § 287.6 (subsequently recodified at §
3 1287.6), Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391,
4 404-05 (2d Cir. 2005), we afford IJs “considerable
5 flexibility in determining the authenticity of . . .
6 documents from the totality of the evidence and in using
7 documents found to be authentic in making an overall
8 assessment of the credibility of a petitioner’s testimony
9 and, ultimately, of her persecution claim.” Shunfu Li v.
10 Mukasey, 529 F.3d 141, 149 (2d Cir. 2008). Here, the agency
11 reasonably determined that the summonses were not reliable
12 because they were not authenticated, the issuance dates were
13 unspecific and altered, and the second summons, which
14 purportedly required Krivca to appear for questioning about
15 her published letter to a newspaper, was issued before the
16 letter was published. Id.17 Petitioners’ argument that the BIA erred in failing to
18 require Salai’s testimony is also unavailing. First,
19 Salai’s assertion that the BIA failed to consider his claims
20 for relief is essentially a due process claim, as it is
21 based on his allegation that the IJ failed to follow the
22 required procedures for adjudication of an asylum claim and
4
1 failed to give him the opportunity to be heard. “To
2 establish a violation of due process, an alien must show
3 that [he] was denied a full and fair opportunity to present
4 [his] claims or that the IJ or BIA otherwise deprived [him]
5 of fundamental fairness.” Burger v. Gonzales, 498 F.3d 131,
6 134 (2d Cir. 2007) (internal quotations marks and citations
7 omitted). Here, the record reflects that, after Krivca and
8 an expert had testified, the IJ asked Petitioners’ counsel
9 whether he wished to present any additional evidence. In
10 discussing the possibility of Salai testifying, counsel
11 proffered that Salai’s testimony would contain “nothing
12 new,” and would be duplicative of Krivca’s testimony.
13 Second, the IJ gave counsel the opportunity to consult with
14 Petitioners off the record regarding the decision not to
15 have Salai testify, and on returning, counsel did not
16 indicate that Petitioners disagreed with this decision.
17 Because Salai was thus afforded “a full and fair
18 opportunity” to present his claims, his argument that the
19 case should be remanded to allow him an opportunity to
20 testify is without merit. Id.; see also Hoodho v. Holder,
21 558 F.3d 184, 192 (2d Cir. 2009) (“[A] party who voluntarily
22 chose an attorney as his representative in an action cannot
5
1 avoid the consequences of the acts or omissions of this
2 freely selected agent.” (internal alterations and quotation
3 marks omitted)).
4 Petitioners also argue that Matter of Fefe, 20 I. & N.
5 Dec. 116 (BIA 1989), supports their contention that the IJ
6 erred in failing to require Salai to take the stand, as his
7 testimony was required under 8 C.F.R. § 1240.11(c)(3)(iii),
8 which provides that “[d]uring the removal hearing, the
9 [asylum applicant] shall be examined under oath on his or
10 her application . . ..” In Matter of Fefe, there was no
11 witness testimony whatsoever, nor did the applicant submit
12 any evidence other than his asylum application. See Matter
13 of Fefe, 20 I. & N. Dec. at 117. In that context, the
14 applicant’s failure to testify left the IJ with insufficient
15 information to render a decision. Here, however, Krivca,
16 the primary applicant and a witness to all of the events
17 which had befallen Salai, testified, and Salai proffered
18 that his testimony would be the same. In addition, the
19 requirement set forth in Matter of Fefe – that an applicant
20 be questioned as to whether the information in his written
21 statement is “complete and correct,” 20 I. & N. Dec. at 118,
22 – is inapplicable here, as Salai did not submit any written
6
1 statement of his claim, and his alleged independent
2 application contained no information as to the basis of his
3 claim, but simply referred to Krivca’s statement.
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of
6 removal that the Court previously granted in this petition
7 is VACATED, and any pending motion for a stay of removal in
8 this petition is DISMISSED as moot. Any pending request for
9 oral argument in this petition is DENIED in accordance with
10 Federal Rule of Appellate Procedure 34(a)(2), and Second
11 Circuit Local Rule 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
15
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