Tas v. Holder , 530 F. App'x 31 ( 2013 )

12-1531
Tas v. Holder
BIA
Hom, IJ
A078 227 092
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 17th day of July, two thousand thirteen.
PRESENT:
JON O. NEWMAN,
PIERRE N. LEVAL,
JOSÉ A. CABRANES,
Circuit Judges.
_______________________________________
MAHMUT TAS,
Petitioner,
v. 12-1531
NAC
ERIC H. HOLDER, JR.,
UNITED STATES ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Andrew P. Johnson, New York, NY.
FOR RESPONDENT: Stuart Delery, Acting Assistant
Attorney General; Alison Marie Igoe,
Senior Counsel; Jeffrey L. Menkin,
Senior Counsel, Office of
Immigration Litigation, U.S.
Department of Justice, Washington,
D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED, in part, and DISMISSED, in part.
Petitioner Mahmut Tas, a native and citizen of Turkey,
seeks review of the March 29, 2012, decision of the BIA
affirming the August 6, 2010, decision of Immigration Judge
(“IJ”) Sandy K. Hom, which denied Tas’s applications for
asylum, withholding of removal, and adjustment of status.
In re Mahmut Tas, No. A078 227 092 (B.I.A. Mar. 29, 2012),
aff’g No. A078 227 092 (Immig. Ct. N.Y. City Aug. 6, 2010).
We assume the parties’ familiarity with the underlying facts
and procedural history.
Under the circumstances of this case, we have reviewed
both the IJ’s and BIA’s decisions. See Zaman v. Mukasey,
514 F.3d 233, 237 (2d Cir. 2008). We review the agency’s
factual findings, including adverse credibility findings,
under the substantial evidence standard, treating them as
“conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B). We review questions of law de novo.
Aliyev v. Mukasey, 549 F.3d 111, 115 (2d Cir. 2008).
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I. Asylum & Withholding of Removal – The “Persecutor Bar”
The agency did not err in finding that Tas was
statutorily ineligible for asylum and withholding of removal
under the persecutor bar. Under sections 1158(b)(2)(A)(i)
and 1231(b)(3)(B)(i) of title 8 of the U.S. code, an alien
who has “ordered, incited, assisted, or otherwise
participated in the persecution of any person on account of
race, religion, nationality, membership in a particular
social group, or political opinion” is ineligible for asylum
or withholding of removal. These provisions are known
collectively as the “persecutor bar.” Xu Sheng Gao v. U.S.
Att’y Gen., 500 F.3d 93, 98 (2d Cir. 2007). Under the
Immigration and Nationality Act (“INA”) and regulations, the
burden of proof is on the alien to show eligibility for
asylum and withholding of removal, see 8 U.S.C.
§§ 1158(b)(1)(B)(i), 1231(b)(3)(C); 8 C.F.R. §§ 1208.13(a),
1208.16(a), and where the evidence indicates that the alien
assisted or participated in persecution, the alien has “the
burden of proving by a preponderance of the evidence that he
[] did not so act.” Zhang Jian Xie v. INS, 434 F.3d 136,
139 (2d Cir. 2006) (quoting 8 C.F.R. § 208.13(c)).
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This Court has identified four factors underpinning the
persecutor bar. See Balachova v. Mukasey, 547 F.3d 374, 384
(2d Cir. 2008). “First, the alien must have been involved
in acts of persecution,” as the term is defined in the INA’s
definition of “refugee.” Id. Second, a “nexus must be
shown between the persecution and the victim’s race,
religion, nationality, membership in a particular social
group, or political opinion.” Id. Third, if the alien did
not incite, order, or actively carry out the persecution,
his conduct “must have assisted the persecution.” Id.(internal quotation marks omitted); see also Fedorenko v.
United States, 449 U.S. 490, 512 n.34 (1981) (identifying a
type of conduct that amounts to assistance in persecution
and distinguishing it from conduct that does not). Finally,
the applicant must have had “sufficient knowledge that his .
. . actions may assist in persecution to make those actions
culpable.” Balachova, 457 F.3d at 385.
Under this framework, Tas’s asylum application and an
asylum officer’s assessment memorandum — both of which
memorialized Tas’s admission that he had shot and beat
ethnic Kurds while serving in the Turkish military —
presented strong evidence that he was, in fact, a
persecutor, and therefore he bore the burden of showing that
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he was not. See Zhang Jian Xie, 434 F.3d at 139. To
satisfy his burden, Tas relied solely on his own testimony
that he did not personally beat or shoot any Kurdish
civilians, but rather witnessed other soldiers in his
military unit commit such acts.
However, the IJ reasonably credited the statements from
Tas’s asylum application and asylum interview, given that
those statements bore a greater indicia of reliability
because they were made before Tas was put on notice by the
asylum officer that he might be subject to the persecutor
bar due to his conduct in the Turkish military, and thus
before he had incentive to modify his testimony in response
to officer’s assessment. See Majidi v. Gonzales, 430 F.3d
77, 80-81 (2d Cir. 2005) (explaining that, although an IJ
must consider an applicant’s explanations, he need not
credit them unless a reasonable fact-finder would be
compelled to do so); see also Xiao Ji Chen v. U.S. Dep’t of
Justice, 471 F.3d 315, 342 (2d Cir. 2006) (finding the
weight afforded to an applicant’s testimony and evidence in
immigration proceedings lies largely within the discretion
of the agency).
The IJ also reasonably relied on these dramatic
discrepancies in the record to further discredit Tas’s
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testimony. See Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d
Cir. 2006) (“even where an IJ relies on discrepancies or
lacunae that, if taken separately, concern matters
collateral or ancillary to the claim, ... the cumulative
effect may nevertheless be deemed consequential by the fact-
finder”); Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.
2003) (in pre-REAL ID Act cases, an adverse credibility
determination must be based on “specific, cogent reasons”
that “bear a legitimate nexus” to the finding, and any
discrepancy must be “substantial” when measured against the
record as a whole).
Thus, having reasonably credited Tas’s statements from
his asylum application and asylum interview that he shot and
beat ethnic Kurds as a member of the Turkish military, the
agency further properly determined that such conduct was
sufficient to invoke the persecutor bar, as it constituted
“assistance” in persecution. See Balachova, 547 F.3d at 385(“Where the conduct was active and has direct consequences
for the victims, we have concluded that it was assistance in
persecution”) (internal quotation omitted)). Tas does not
contest that the persecution bore a nexus to a protected
ground, see id. at 384, and his statement in his asylum
application that he beat “innocent Kurdish villagers,”
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rather than terrorists, belies his argument that he did not
know his conduct assisted in persecution, see id.Accordingly, the persecutor bar precludes Tas’s eligibility
for relief. See 8 U.S.C. §§ 1158(b)(2)(A)(i),
1231(b)(3)(B)(i).
II. Adjustment of Status
We are without jurisdiction to review Tas’s claim that
the agency erred in weighing factors relevant to the
discretionary grant or denial of adjustment of status, as he
does not raise a colorable constitutional claim or question
of law. See 8 U.S.C. § 1252(a)(2)(B)(i), (D); Guyadin v.
Gonzales, 449 F.3d 465, 468-69 (2d Cir. 2006). The petition
is therefore dismissed to the extent it challenges the
discretionary denial of his adjustment of status
application.
For the foregoing reasons, the petition for review is
DENIED in part and DISMISSED in part. As we have completed
our review, any stay of removal that the Court previously
granted in this petition is VACATED, and any pending motion
for a stay of removal in this petition is DISMISSED as moot.
Any pending request for oral argument in this petition is
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DENIED in accordance with Federal Rule of Appellate
Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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