Shad Alam v. Atty Gen USA ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 10-4586
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SHAD MOHAMMED ALAM,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
_____________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A079-727-897)
Immigration Judge: Honorable Rosalind K. Malloy
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 6, 2012
Before: SLOVITER, VANASKIE, and GARTH, Circuit Judges.
(Filed: February 14, 2012)
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OPINION
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GARTH, Circuit Judge.
Petitioner Shad Mohammed Alam was deemed removable by an Immigration
Judge (IJ), who denied various applications for relief. When Alam appealed that
determination to the Board of Immigration Appeals (BIA), his case was remanded back
to the IJ, who once again determined that he was subject to removal and not eligible for
1
relief. In a November 24, 2010 decision, the BIA dismissed Alam’s appeal from that
second decision of the IJ, and Alam now petitions for review of that dismissal. For the
reasons that follow, we will affirm the BIA’s dismissal of Alam’s appeal.
I.
We write principally for the benefit of the parties and recite only the facts essential
to our disposition.
Alam, a native and citizen of Bangladesh, claims that he entered the United States
through Miami on November 8, 2001.
On January 31, 2002, Alam was served with a notice to appear which alleged that
he was removable under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien who had entered the
United States without inspection. Alam thereafter submitted applications for asylum,
withholding of removal, and relief under the Convention Against Torture. 1 On May 5,
2004, after a hearing on Alam’s applications, the IJ stated that she would grant his
application for asylum and that she intended to issue an oral decision at a future time. On
May 28, 2004, Immigrations and Customs Enforcement (ICE) filed a notice of appeal of
that decision. On January 7, 2005, the IJ departed from her prior statement and issued an
oral decision denying Alam’s application.
Alam appealed that decision to the BIA. The BIA vacated the January 7 decision
and remanded his case to the IJ for clarification of the record. During the pendency of
the remanded proceedings, on November 13, 2007, Alam informed the IJ that he had
1
Alam does not now appeal anything relevant to his request for relief under the
Convention Against Torture, and we therefore do not address it further.
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married a United States citizen and requested adjustment of status to lawful permanent
resident on that basis. 2 At that time, the IJ instructed Alam to provide the IJ with the
name under which Alam was admitted to the United States so the IJ could determine
whether he had undergone the inspection required for eligibility for adjustment of status.
Alam failed to provide that information.
On January 14, 2009, the IJ held a hearing on Alam’s asylum application and his
removability. On January 22, 2009, the IJ determined that Alam was removable as
originally charged, found him ineligible for adjustment of status, and once again denied
his asylum application, finding that neither Alam nor the evidence he submitted in
support of the application was credible. Alam appealed that decision to the BIA, which
dismissed his appeal. Alam timely petitioned this court for review.
II.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). Where, as here, “the BIA
issues its own decision on the merits and not a summary affirmance, we review its
decision, not that of the IJ.” Kaplun v. Att’y Gen., 602 F.3d 260, 265 (3d Cir. 2010).
“Our review of the agency’s legal conclusions is de novo,” and we “review factual
findings under the ‘substantial evidence’ standard.” Huaw Wu v. Att’y Gen. 571 F.3d
314, 317 (3d Cir. 2009). We will therefore uphold factual determinations, including
credibility determinations, if they are supported by “reasonable, substantial, and
2
Alam claimed he was the beneficiary of an approved I-130 visa petition as a result of
his marriage to a United States citizen.
3
probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S.
478, 481 (1992) (internal citation omitted).
III.
On appeal, Alam now claims: 1) that the BIA erred in determining that there was
substantial evidence to support a finding that Alam and his evidence were not credible;
and 2) that the BIA improperly concluded that there was insufficient evidence to establish
that Alam illegally entered the United States through Miami on November 8, 2001 with a
picture substituted passport 3 and was inspected upon entry. We will address each of
these contentions in turn.
A.
Alam applied for asylum under 8 U.S.C. § 1158(a)(1), claiming status as a
“refugee” under 8 U.S.C. § 1101(a)(42)(A) on the grounds that he had “a well founded
fear of persecution on account of . . . membership in a . . . political group.” Id. The IJ
denied that application on January 22, 2009, concluding that Alam did not have any such
well-founded fear, a conclusion that was wholly based on the IJ’s determination that
Alam was not credible. In reviewing an IJ’s credibility determination, the BIA considers
whether the discrepancies relied upon appear in the record, whether they provide specific
reasons to conclude the witness was not credible, and whether a convincing explanation
has been offered for the discrepancies. See Xie v. Att’y Gen., 359 F.3d 239, 243 (3d Cir.
2004).
3
A picture substituted passport is a passport in which the photograph of the passport
holder has been replaced by a photograph of a different individual who seeks to use the
passport.
4
In reaching an adverse credibility determination and denying Alam’s application
for asylum, the IJ determined that Alam submitted fraudulent affidavits, that Alam had
failed to list his alleged nickname in his asylum application, and that Alam’s explanation
for the fraudulent affidavits was unsatisfactory. Specifically, Alam claimed that he was a
local leader of a minority political party in Bangladesh who would be subjected to attacks
if he were to return to Bangladesh. In support of those assertions, Alam submitted three
declarations purportedly from members of the same political party, all of which
addressed his involvement and visibility in the party.
All three declarations submitted by Alam later proved to be forgeries; Alam does
not deny this fact. Furthermore, when two of the three alleged declarants were later
interviewed about Alam and his alleged involvement in Bangladeshi politics, both
indicated that they did not know anyone by Alam’s name. One declarant, a local leader
in the party, also explicitly named another individual as having held one of the political
offices at the time that Alam claimed to have held it.
Alam claimed that he did not know the affidavits were forged at the time that he
submitted them to the IJ. Even assuming this to be true, the subsequent statements
collected from the two alleged declarants weigh heavily against Alam’s credibility. The
fact that one leading member of Alam’s alleged party expressly identified another
individual as holding an office that Alam claimed to hold is, by itself, sufficient evidence
to support the IJ’s adverse credibility finding. Alam failed to explain that significant
discrepancy, saying only that the declarant’s statement was incorrect, and that Alam
could not provide an explanation for the inaccuracy.
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Additionally, the statements of both declarants that they did not know anyone by
Alam’s name weighs heavily against his credibility. In an effort to explain this
discrepancy, Alam claims that these individuals would only have known him as “Zillu,”
an alleged nickname which did not closely resemble his name. Alam introduced the
testimony of an expert witness to establish that such use of a nickname is commonplace
in Bangladesh. Nevertheless, as the IJ pointed out, Alam failed to list any alternate
names on his written application for asylum. When asked to explain his failure to do so,
Alam testified to three things: 1) that he did not know nicknames were used in the United
States; 2) that his relatives and the party leaders in Bangladesh knew him by his
nickname; and 3) that he did not list his nickname on the application because his relatives
and others close to him knew him as “Zillu,” and not as “Alam.” His testimony that his
family, party leaders and others close to him knew him as “Zillu” weighs strongly against
the credibility of his claim that he deliberately omitted that nickname.
The combination of Alam’s failure to satisfactorily explain the failure of the two
declarants to recognize his name, his internally contradictory testimony, Alam’s
“nickname testimony,” and the evidence that Alam had lied about holding a specific
political office which was held by someone else, justifies the IJ’s adverse credibility
determination. We conclude that the BIA properly determined that the record reflected
these discrepancies which Alam failed to rectify, and therefore properly upheld the IJ’s
adverse credibility determination. Thus, there was no error in concluding that Alam was
not credible.
B.
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Alam next argues that he produced sufficient evidence to support a finding that he
entered the United States through Miami on November 8, 2001 with a picture substituted
passport and was subjected to inspection upon his entry. Alam therefore contends that he
is eligible for adjustment of status because he is the beneficiary of a successful I-130 visa
application because of his marriage to a United States citizen. The IJ held, the BIA
affirmed, and we now agree that Alam is ineligible for adjustment of status because he
has not proven that he was inspected upon entry to the United States. An alien is eligible
for adjustment of status only if he “was inspected and admitted or paroled into the United
States,” 8 U.S.C. § 1255(a), and Alam has not introduced sufficient or credible evidence
to support a finding that he was inspected upon entry.
Uncorroborated testimony from a non-credible witness, which Alam was held to
be, is not “reasonable, substantial, and probative evidence.” Elias-Zacarias., supra, 502
U.S. at 481. Because there is no evidence other than Alam’s uncorroborated testimony,
let alone substantial evidence, to support a finding that Alam was inspected upon entry to
the United States, he is ineligible for adjustment of status under 8 U.S.C. § 1255(a).
IV.
Because we conclude that there was no error in the adverse credibility
determination against Alam, and that there was no substantial evidence to establish that
he was inspected upon entry to the United States, we will affirm the BIA’s dismissal of
Alam’s appeal.
7