Carrera Veliz v. Holder ( 2010 )

09-2361-ag
Carrera Veliz v. Holder
BIA
Romig, IJ
A070 775 595
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 3 rd day of May, two thousand ten.
5
6 PRESENT:
7 ROBERT D. SACK,
8 ROBERT A. KATZMANN,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _______________________________________
12
13 ORLANDO CARRERA VELIZ,
14 Petitioner,
15
16 v. 09-2361-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Enrique Peña-Pérez, New York, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General, Douglas E. Ginsburg,
28 Assistant Director, Paul Fiorino,
29 Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 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 Orlando Carrera Veliz, a native and citizen of
6 Guatemala, seeks review of a May 11, 2009, order of the BIA,
7 affirming the August 3, 2007, decision of Immigration Judge
8 (“IJ”) Jeffrey L. Romig, which denied his applications for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”), and cancellation of
11 removal. In re Orlando Carrera Veliz, No. A070 775 595
12 (B.I.A. May 11, 2009), aff’g No. A070 775 595 (Immig. Ct.
13 N.Y. City Aug. 3, 2007). We assume the parties’ familiarity
14 with the underlying facts and procedural history in this
15 case.
16 Under the circumstances of this case, we review the
17 IJ’s decision. See Chun Gao v. Gonzales, 424 F.3d 122, 124
18 (2d Cir. 2005). We review legal issues de novo, Aslam v.
19 Mukasey, 537 F.3d 110, 114 (2d Cir. 2008), and “the agency’s
20 factual findings, including adverse credibility
21 determinations, under the substantial evidence standard,
22 treating them as ‘conclusive unless any reasonable
2
1 adjudicator would be compelled to conclude to the
2 contrary,’” Liang Chen v. U.S. Att’y Gen., 454 F.3d 103, 105
3 (2d Cir. 2006), quoting 8 U.S.C. § 1252(b)(4)(B).
4 I. Due Process
5 Carrera Veliz asserts that his due process rights were
6 violated because his removal proceeding was conducted via
7 video conference. As this Court has explained, “an IJ has
8 statutory authority to conduct entire proceedings via video
9 conference,” as long as the proceedings “still accord with
10 the constitutional requirements for due process under [the
11 Supreme Court’s decision in] Mathews v. Eldridge.” Aslam,
12 537 F.3d at 114 (explaining that under Mathews due process
13 requires that, at a minimum, petitioners are accorded an
14 opportunity to be heard at a meaningful time and in a
15 meaningful manner), citing Mathews v. Eldridge, 424 U.S.
16 319, 333 (1976); see also 8 U.S.C. § 1229a(b)(2)(A)(iii)
17 (stating that removal proceedings may take place through
18 video conference). In Aslam, while noting the risks posed
19 by videoconference hearings, we rejected a petitioner’s
20 claim that he was denied due process when a witness’s
21 testimony was taken by video. Aslam, 537 F.3d at 115.
22 Carrera Veliz did not object to the video conference at
3
1 the time of the proceedings. Indeed, like the petitioner in
2 Aslam, 537 F.3d at 115, Carrera Veliz rejected the IJ’s
3 proposal of a change of venue to permit an in person
4 hearing. Nevertheless, he asserts that he was not accorded
5 a full and fair hearing because the IJ was unable to assess
6 his demeanor in person. However, the IJ did not deny
7 Carrera Veliz’s applications for relief based on his
8 demeanor. Similarly, although Carrera Veliz asserts that
9 the video conference rendered the IJ unable to consider his
10 level of education, he fails to explain how an in-person
11 hearing would have either allowed the IJ to better
12 understand his education level or otherwise remedied any
13 alleged deficiency in the proceeding.
14 Because Carrera Veliz fails to demonstrate that he was
15 not afforded the opportunity to be heard in a meaningful
16 manner, his arguments challenging the constitutionality of
17 his video conference proceedings are meritless. See id.18 114-15.
19 II. Asylum, Withholding of Removal, and CAT Relief
20 In making his adverse credibility determination, the IJ
21 reasonably relied on Carrera Veliz’s inconsistent testimony
22 regarding how long he stayed in Guatemala following his
4
1 alleged period of detention – Carrera Veliz testified that
2 he stayed for a year or two, but his asylum application
3 materials suggested he had only stayed for a month or two.
4 See Liang Chen, 454 F.3d at 106-07 (2d Cir. 2006). The IJ
5 reasonably found that the discrepancy was significant, and
6 that the attempted explanation that Carrera Veliz was
7 actually referring to time spent in Mexico was unpersuasive,
8 as Carrera Veliz’s Form I-589 stated that he was only “in
9 transit” in Mexico before arriving in the United States, not
10 for one or two years as his testimony suggested. See Majidi
11 v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
12 Additionally, the IJ found that Carrera Veliz’s
13 “willingness to return to Guatemala in September 1993,
14 albeit to visit his father due to an illness, suggest[ed]
15 that his claimed fear of return to that country was not
16 subjectively genuine.” See Wensheng Yan v. Mukasey, 509
17 F.3d 63, 68 n.2 (2d Cir. 2007).
18 Ultimately, the IJ’s adverse credibility determination
19 was supported by substantial evidence. See Tu Lin v.
20 Gonzales, 446 F.3d 395, 400 (2d Cir. 2006). The agency’s
21 denial of Carrera Veliz’s applications for asylum,
22 withholding of removal, and CAT relief was therefore
23 reasonable, because all three claims rested on the same
5
1 factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156
2 (2d Cir. 2006); see also Xue Hong Yang v. U.S. Dep’t. of
3 Justice, 426 F.3d 520, 523 (2d Cir. 2005).
4 III. Cancellation of Removal
5 8 U.S.C. § 1252(a)(2)(B)(i) provides that this Court
6 does not have jurisdiction to review an agency’s denial of
7 an application for cancellation of removal. However, this
8 court may invoke its jurisdiction to consider a
9 constitutional claim or a question of law. See Xiao Ji Chen
10 v. U.S. Dep’t of Justice, 471 F.3d 315, 329-30 (2d Cir.
11 2006); 8 U.S.C. § 1252(a)(2)(D).
12 Here, Carrera Veliz presents a question of law by
13 arguing that his due process rights were violated because
14 the IJ excluded evidence that he sought to admit during his
15 removal proceeding. See Xiao Ji Chen, 471 F.3d at 329-30.
16 However, as the IJ explained during the hearing, Carrera
17 Veliz was afforded the opportunity to submit evidence until
18 10 days in advance of the hearing, and because he failed to
19 submit the evidence 10 days in advance of the hearing, the
20 IJ reasonably declined to admit it. See
21 8 C.F.R. § 1003.31(c). Thus, the IJ did not err in
22 declining to admit Carrera Veliz’s untimely evidence. In
6
1 any event, as the BIA explained, Carrera Veliz was not
2 prejudiced by the IJ’s refusal to admit updated additional
3 evidence regarding his son’s learning disability into the
4 record, because the IJ specifically considered his son’s
5 disability as an aspect of hardship in his case.
6 Finally, while Carrera Veliz asserts in his brief that
7 the agency erred in characterizing him as an “arrival [sic]
8 alien,” this argument is meritless. The agency properly
9 determined that Carrera Veliz is an “arriving alien” because
10 his parole status has been terminated. See 8 C.F.R. §
11 212.5(e).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of
14 removal that the Court previously granted in this petition
15 is VACATED, and any pending motion for a stay of removal in
16 this petition is DISMISSED as moot.
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
19
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