Oudit v. Holder , 402 F. App'x 641 ( 2010 )

09-3425-ag
Oudit v. Holder
BIA
Vomacka, IJ
A097 531 241
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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 7th day of December, two thousand ten.
PRESENT:
ROBERT D. SACK,
ROBERT A. KATZMANN,
DENNY CHIN,
Circuit Judges.
_______________________________________
STEVE OUDIT,
Petitioner,
v. 09-3425-ag
NAC
ERIC H. HOLDER, JR., U.S.
ATTORNEY GENERAL
Respondent.
______________________________________
FOR PETITIONER: Visuvanathan Rudrakumaran, Law
Office of V. Rudrakumaran, New York,
N.Y.
FOR RESPONDENT: Liza S. Murcia, Attorney, Office of
Immigration Litigation, for Jennifer
Paisner Williams, Senior Litigation
Counsel, and Tony West, Assistant
Attorney General, Civil Division,
United States 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.
Petitioner Steve Oudit, a native and citizen of
Trinidad and Tobago, seeks review of a July 13, 2009 order
of the BIA affirming the January 15, 2008 decision of
Immigration Judge (“IJ”) Alan A. Vomacka denying his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Steve
Oudit, No. A097 531 241 (B.I.A. July 13, 2009), aff’g No.
A097 531 241 (Immig. Ct. N.Y. City Jan. 15, 2008). We
assume the parties’ familiarity with the underlying facts
and procedural history in this case.
In the circumstances of this case, we review the IJ’s
decision as supplemented by the BIA’s decision. See Yan
Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). This
Court reviews the agency’s factual findings for substantial
evidence. 8 U.S.C. § 1252(b)(4)(B); see also Jian Hui Shao
v. Mukasey, 546 F.3d 138, 157-58 (2d Cir. 2008). It reviews
de novo questions of law and the application of law to
undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110
2
(2d Cir. 2008).
As an initial matter, we decline to consider Oudit’s
unexhausted argument that the IJ was biased. See Lin Zhong
v. U.S. Dep't of Justice, 480 F.3d 104, 119-20 (2d Cir.
2007).
The agency reasonably found that Oudit was not credible
because of inconsistencies in his testimony, his demeanor,
and his failure to provide adequate evidence corroborating
his testimony. Under the REAL ID Act, which applies in this
case, the agency may, considering the totality of the
circumstances, base a credibility finding on an asylum
applicant’s “demeanor, candor, or responsiveness,” the
plausibility of his or her account, and inconsistencies in
his or her statements, without regard to whether they go “to
the heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii). Although Oudit argues that the agency
failed to consider evidence of conditions in his home
country, the record suggests otherwise. See Xiao Ji Chen v.
U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir.
2006). Indeed, the BIA explicitly acknowledged evidence of
“problems involving police in Trinidad and Tobago” in its
decision.
3
Oudit, however, is correct in arguing that some of the
IJ’s findings, on which he based his adverse credibility
determination, were not supported by the record. First, the
IJ’s finding that Oudit was inconsistent about the number of
beatings he suffered was based on a misstatement of the
record, conflating Oudit’s testimony about when the police
came to his store with testimony about when he was beaten by
the police. See Zhou Yun Zhang v. U.S. INS, 386 F.3d 66, 73
(2d Cir. 2004) (“[O]ur review is meant to ensure that
credibility findings are based upon neither a misstatement
of the facts in the record nor bald speculation or
caprice.”), overruled on other grounds by Shi Liang Lin v.
U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007). Second,
the IJ’s finding that Oudit was inconsistent about where on
his body he was beaten by cable wire was based on a
misquotation of Oudit’s asylum application. Finally, the
IJ’s finding that the beatings Oudit had alleged were
inconsistent with his scars was improper because it involved
fact finding “beyond ordinary judicial competence.”1 Li Hua
1
The IJ’s attempt to buttress his finding by
suggesting that Oudit’s scars were caused by construction
work or trouble with the police due to his history of
drinking was also based on speculation. See Siewe v.
Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007) (discussing
how speculation can undermine fact finding).
4
Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 111 (2d Cir.
2006); see also Edimo-Doualla v. Gonzales, 464 F.3d 276, 285
(2d Cir. 2006) (“It was speculative for the IJ to assume
that scars were necessary either to corroborate
Edimo-Doualla’s account or to establish a level of abuse
amounting to persecution.”).
Nevertheless, remand is not necessary in this case
because “we can state with confidence that the IJ would
adhere to his decision were the petition remanded.” Xiao Ji
Chen, 434 F.3d at 161. In contrast to Li Hua Lin, here
there is no indication that the IJ’s erroneous findings were
“central” to his decision. 453 F.3d at 111. Although the
agency erred in finding some inconsistencies in Oudit’s
testimony that are not supported by the record, there are
“ample, error-free grounds that provide substantial evidence
to support the IJ’s adverse credibility determination.”
Singh v. BIA, 438 F.3d 145, 149 (2d Cir. 2006).
The agency’s adverse credibility finding reasonably
relied on several material inconsistencies in Oudit’s
testimony that were supported by the record. Substantial
evidence in the record supports the IJ’s findings that Oudit
was inconsistent regarding whether (1) his wife and daughter
5
moved to the United States after his problems with the
police, (2) he was beaten two days in a row by the police in
August 1998, and (3) he was beaten with a cable by the
police in October 1998. Although Oudit has attempted to
offer explanations for these inconsistencies, none of these
explanations compels the conclusion that his statements were
not inconsistent. See Majidi v. Gonzales, 430 F.3d 77,
80-81 (2d Cir. 2005) (“A petitioner must do more than offer
a plausible explanation for his inconsistent statements to
secure relief; he must demonstrate that a reasonable
fact-finder would be compelled to credit his testimony.”
(internal quotation marks omitted) (emphasis in original)).
Moreover, the IJ reasonably based his adverse
credibility determination on demeanor, finding that Oudit
was unresponsive. We defer to that finding because the IJ
had “the unique advantage . . . of having heard directly
from the applicant.” Majidi, 430 F.3d at 81 n.1 (internal
quotation marks omitted).
Finally, the IJ reasonably found that Oudit was not
credible because he failed to adduce corroborating evidence
to rehabilitate his questionable testimony. See Biao Yang
v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (per curiam).
6
The IJ reasonably gave little weight to the letters from
business owners submitted by Oudit because they contained
similar language, did not include any verification of the
authors’ identity, and were hearsay. In addition, the
letter from Oudit’s sister failed to indicate her
relationship to Oudit. See Xiao Ji Chen, 471 F.3d at 342(finding that the weight afforded to the applicant’s
evidence “lies largely” within the discretion of the agency)
(internal alteration omitted). The IJ also reasonably
suggested that Oudit should have provided corroborating
evidence from his wife, lawful permanent resident sister, or
a doctor. Contrary to Oudit’s claims, an IJ need not first
identify the particular pieces of missing, relevant evidence
before relying on a lack of corroboration to support an
adverse credibility finding. See Xiao Ji Chen, 471 F.3d at
341. Although an IJ may not base an adverse credibility
finding on the absence of corroborating evidence that was
not reasonably available to the applicant, it was reasonable
for the IJ to expect that Oudit had access to a doctor and
could have offered the testimony of his wife and
sister-in-law, both of whom were living in the United
States.
7
In view of the inconsistencies in Oudit’s testimony
that were supported by the record, the IJ’s demeanor
finding, and Oudit’s failure to rehabilitate his testimony
with adequate corroborating evidence, we conclude that
substantial evidence supported the IJ’s adverse credibility
determination. See 8 U.S.C. § 1158(b)(1)(B)(iii). Remand
therefore is not necessary. Xiao Ji Chen, 434 F.3d at 161.
Because Oudit’s claims for withholding of removal and CAT
relief share the same “factual basis,” Paul v. Gonzales, 444
F.3d 148, 156 (2d Cir. 2006), the agency’s adverse
credibility determination is dispositive of Oudit’s
petition.
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
8