Piciri v. Holder ( 2010 )

09-1794-ag
Piciri v. Holder
BIA
DeFonzo, IJ
A 077 549 232
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 23 rd day of March, two thousand ten.
5
6 PRESENT:
7 JOSEPH M. McLAUGHLIN,
8 ROBERT A. KATZMANN,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _______________________________________
12
13 LULZIM PICIRI,
14 Petitioner,
15
16 v. 09-1794-ag
17 NAC
18 ERIC H. HOLDER, JR., U.S. ATTORNEY
19 GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Saul C. Brown, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Jennifer L. Lightbody,
27 Senior Litigation Counsel; Laura
28 M.L. Maroldy, Trial Attorney, Office
29 of Immigration Litigation,
30 Washington 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 Petitioner Lulzim Piciri, a native and citizen of
6 Albania, seeks review of the April 1, 2009, order of the BIA
7 denying his motion to remand and affirming the June 27,
8 2007, decision of Immigration Judge (“IJ”) Paul A. DeFonzo
9 denying his application for asylum and withholding of
10 removal. In re Lulzim Piciri, No. A 077 549 232 (B.I.A.
11 Apr. 1, 2009), aff’g No. A 077 549 232 (Immig. Ct. N.Y. City
12 June 27, 2007). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Under the circumstances of this case, we review both
15 the IJ’s and the BIA’s decisions. See Yan Chen v. Gonzales,
16 417 F.3d 268, 271 (2d Cir. 2005). The applicable standards
17 of review are well-established. See 8 U.S.C.
18 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
19 (2d Cir. 2009).
20 I. Asylum and Withholding of Removal
21 Substantial evidence supports the agency’s adverse
22 credibility determination. As a preliminary matter, Piciri
2
1 does not challenge the IJ’s findings that: (1) although he
2 testified that he was detained and threatened by authorities
3 following a peaceful demonstration in September 1998, he did
4 not mention the detention or demonstration in his asylum
5 application; (2) despite repeated prompting by the court, he
6 was unable to recall another September 1998 incident,
7 described in his asylum application, during which he claimed
8 he was detained and beaten; (3) his testimony that his home
9 was invaded by police only once conflicted with a newspaper
10 article he submitted indicating two such invasions; (4) his
11 testimony that he was beaten in February 1999 at his home in
12 front of his family conflicted with the newspaper article,
13 which stated that the beating occurred in a police “cell.”
14 Accordingly, those findings stand as valid bases for the
15 IJ’s adverse credibility determination. See Shunfu Li v.
16 Mukasey, 529 F.3d 141, 146 (2d Cir. 2008).
17 With respect to the findings Piciri does challenge,
18 each was proper. The fact that the IJ initially questioned
19 Piciri without his attorney present did not deprive him of a
20 “full and fair opportunity to present his claims.” 1 See Li
1
The IJ went forward with Piciri’s asylum hearing
when his attorney failed to appear for a second time.
3
1 Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 104-05 (2d
2 Cir. 2006). The IJ provided him an opportunity to submit
3 “any additional information” regarding his claims for
4 relief, attempted to “protect” him from inappropriate
5 questions, and invited him to “bring any further facts” to
6 the IJ’s attention. Furthermore, on remand, Piciri was
7 represented by an attorney, and had the opportunity to
8 rehabilitate his previous testimony and offer any additional
9 testimony he deemed appropriate.
10 The IJ also did not err in relying on a U.S. State
11 Department Consular Report to find that the “Association of
12 Political Persecuted Persons” membership card Piciri
13 submitted was fraudulent. We have previously identified a
14 non-exhaustive set of guidelines establishing what type of
15 information should appear in a consular report in order for
16 it to be deemed reliable, including (1) the identity and
17 qualifications of the investigator; (2) the objective and
18 extent of the investigation; and (3) the methods used to
19 verify the information discovered. See Zhen Nan Lin v. U.S.
20 Dep’t of Justice, 459 F.3d 255, 271 (2d Cir. 2006). Each of
21 these appeared in the consular report in this case.
22 Furthermore, Piciri submitted no evidence to suggest that
4
1 the investigator disclosed information “sufficient to give
2 rise to a reasonable inference” that he had applied for
3 asylum. Id. at 264; see also 8 C.F.R. § 208.6.
4 Ultimately, substantial evidence supported the agency’s
5 adverse credibility determination. See 8 U.S.C.
6 § 1252(b)(4)(B); Yanqin Weng, 562 F.3d at 513. Therefore,
7 the agency did not err in denying Piciri’s application for
8 asylum and withholding of removal because the only evidence
9 that he would be persecuted depended on his credibility.
10 See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
11 II. Motion to Remand
12 The BIA also did not abuse its discretion in denying
13 Piciri’s motion to remand based on the allegedly ineffective
14 assistance of two of his former attorneys. We review the
15 BIA’s denial of a motion to remand for abuse of discretion.
16 See Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 151
17 (2d Cir. 2005). With respect to his claim against his first
18 attorney, the BIA reasonably found that Piciri failed to
19 comply with the requirements of Matter of Lozada, 19 I. & N.
20 Dec. 637 (BIA 1988). See Jian Yun Zheng v. U.S. Dep’t of
21 Justice, 409 F.3d 43, 46-47 (2d Cir. 2005). Specifically,
22 Piciri failed to file an affidavit setting forth in detail
5
1 his agreement with counsel. See Matter of Lozada, 19 I. &
2 N. Dec. at 639. With respect to Piciri’s claim against his
3 second attorney, the BIA reasonably found that he failed to
4 establish the requisite prejudice. See Rabiu v. INS, 41
5 F.3d 879, 882-83 (2d Cir. 1994); Changxu Jiang v. Mukasey,
6 522 F.3d 266, 270 (2d Cir. 2008). Indeed, although counsel
7 made several attempts to elicit testimony from Piciri
8 regarding his past persecution and fear of future
9 persecution, testimony that could have rehabilitated his
10 earlier testimony, Piciri’s answers were non-responsive.
11 Under these circumstances, we find no abuse of discretion in
12 the BIA’s refusal to remand the proceedings for a third
13 merits hearing. For the foregoing reasons, the petition for
14 review is DENIED. As we have completed our review, any stay
15 of removal that the Court previously granted in this
16 petition is VACATED, and any pending motion for a stay of
17 removal in this petition is DISMISSED as moot. Any pending
18 request for oral argument in this petition is DENIED in
19 accordance with Federal Rule of Appellate Procedure
20 34(a)(2), and Second Circuit Local Rule 34.1(b).
21
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
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