Deysi v. Holder , 368 F. App'x 239 ( 2010 )

09-0324-ag
Deysi v. Holder
BIA
Straus, IJ
A095 150 179
A095 150 180
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 DENNIS JACOBS,
8 Chief Judge,
9 JOSEPH M. McLAUGHLIN,
10 GERARD E. LYNCH,
11 Circuit Judges.
12 _______________________________________
13
14 DIANA DEYSI, HELMI SETIADI,
15 Petitioners,
16
17 v. 09-0324-ag
18 NAC
19 ERIC H. HOLDER, JR., 1 UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric. H. Holder, Jr., is
automatically substituted for former Acting Attorney
General Mark R. Filip as respondent in this case.
1 FOR PETITIONER: Justin Conlon, Law Offices of
2 Michael Boyle, North Haven,
3 Connecticut.
4
5 FOR RESPONDENT: Tony West, Assistant Attorney
6 General; Francis W. Fraser, Senior
7 Litigation Counsel; Marion E.
8 Guyton, Trial Attorney, Office of
9 Immigration Litigation, United
10 States Department of Justice,
11 Washington, D.C.
12
13 UPON DUE CONSIDERATION of this petition for review of a
14 Board of Immigration Appeals (“BIA”) decision, it is hereby
15 ORDERED, ADJUDGED, AND DECREED, that the petition for review
16 is DENIED.
17 Diana Deysi and Helmi Seitadi, natives and citizens of
18 Indonesia, seek review of the April 2, 2007 order of the BIA
19 affirming the December 31, 2008 decision of Immigration
20 Judge (“IJ”) Michael W. Straus, which pretermitted their
21 application for asylum and denied their application for
22 withholding of removal and relief under the Convention
23 Against Torture (“CAT”). 2 In re Diana Deysi, Helmi Setiadi,
24 No. A095 150 179/80 (B.I.A. Apr. 02, 2008), aff’g No. A095
25 150 179/80 (Immig. Ct. Hartford, CT Dec. 31, 2006). We
26 assume the parties’ familiarity with the underlying facts
2
Because Seitadi’s claim is wholly dependent on
Deysi’s and he was listed as a derivative applicant on
her application for asylum, we refer to Deysi alone
throughout this order.
2
1 and procedural history in this case.
2 Under the circumstances of this case, this Court
3 reviews the decision of the IJ as supplemented by the BIA.
4 See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
5 The applicable standards of review are well-established.
6 See Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008);
7 Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
8 Substantial evidence supports the agency’s adverse
9 credibility determination. 3
10 The adverse credibility determination relied, in part,
11 “on the language and story similarity between [Deysi’s]
12 application and others prepared by [the Chinese Indonesian
13 American Society (“CIAS”)].” Deysi’s application is
14 strikingly similar to fraudulent applications submitted by
15 CIAS. See Surinder Singh v. BIA, 438 F.3d 145, 148 (2d Cir.
16 2006) (upholding an adverse credibility determination based,
17 in part, on the similarities between affidavits provided by
18 different people from the alien’s country of nationality in
19 support of the alien’s asylum application); see also Mei
20 Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 524 (2d Cir.
3
Deysi does not challenge the agency’s finding that
her asylum application was untimely.
3
1 2007).
2 The IJ also reasonably relied on inconsistencies in
3 Deysi’s testimony. See Liang Chen v. U.S. Att’y Gen., 454
4 F.3d 103, 106-107 (2d Cir. 2006). As the IJ observed Deysi
5 first testified that she was assisted by the CIAS only as
6 translators in preparing her asylum application; but “it was
7 very clear [on cross-examination] that they did a lot more
8 than translating even by [her] own admissions.” Further,
9 the IJ found that Deysi failed to explain why she had “three
10 or four revisions of her asylum application” with CIAS, when
11 she testified that she did not speak English and would not
12 be able to review any corrections made by CIAS. See Majidi
13 v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
14 Further, the agency reasonably relied on the lack of
15 corroboration for Deysi’s account. See Xiao Ji Chen v.
16 U.S. Dep’t of Justice, 471 F.3d 315, 341 (2d Cir. 2006).
17 Specifically, Deysi “was on notice that the credibility of
18 her application would be spotlighted precisely because of
19 the evidence of fraud stemming from Operation Jakarta,” yet
20 she “offered no new corroborative evidence since her
21 original hearing.”
22 Lastly, the agency relied on omissions on a
4
1 questionnaire that Deysi completed with CIAS in preparation
2 for her asylum application. We generally accord deference
3 to the agency’s evaluation of documentary evidence. See id.4 at 342. Regardless of the weight the agency gave to this
5 particular document, remand would be futile in this case
6 because the agency’s broader credibility determination is
7 amply supported by the record. See id. at 335; See Tu Lin
8 v. Gonzales, 446 F.3d 395, 402 (2d Cir. 2006).
9 Deysi’s application for withholding of removal and CAT
10 relief were based on the same factual predicate and
11 therefore were reasonably denied. See Paul v. Gonzales, 444
12 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of
13 Justice, 426 F.3d 520, 523 (2d Cir. 2005).
14 For the foregoing reasons, the petition for review is
15 DENIED. As we have completed our review, any stay of
16 removal that the Court previously granted in this petition
17 is VACATED, and any pending motion for a stay of removal in
18 this petition is DISMISSED as moot. Any pending request for
19 oral argument in this petition is DENIED in accordance with
20 Federal Rule of Appellate Procedure 34(a)(2), and Second
21 Circuit Local Rule 34.1(b).
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
24
25
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