Ozdemir v. Attorney General , 276 F. App'x 142 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
4-29-2008
Ozdemir v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2564
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-2564
___________
ISMAIL OZDEMIR,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A95 820 936)
Immigration Judge: Honorable Eugene Pugliesi
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 9, 2008
Before: McKEE, NYGAARD and ROTH, Circuit Judges
(Opinion filed: April 29, 2008)
___________
OPINION
___________
PER CURIAM
Ismail Ozdemir has filed a petition for review of the final order by the Board of
Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”’s) denial of
Ozdemir’s requests for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). For the reasons that follow, we will deny the
petition for review.
Ozdemir is a native and citizen of Turkey. In 2001, he was admitted into the
United States as a non-immigrant visitor, but he overstayed his visa. He was placed in
removal proceedings and conceded removability. Ozdemir applied for asylum,
withholding of removal, and CAT relief. The IJ held an evidentiary hearing on
Ozdemir’s claims on September 28, 2005.
Ozdemir testified about his life in Turkey as an ethnic Kurd. He stated that in
grade school, teachers punished him for speaking Kurdish at school with his classmates
by hitting him on the hand and legs and forcing him to stand by the wall. In 1994, he
moved to Istanbul with his family. While in Istanbul, he joined the Hadep political party,
a party that advocated for Kurdish rights. He testified that he served tea and coffee at
Hadep meetings. Ozdemir was asked whether he had ever been harmed because of his
Hadep membership, and he responded that he was “disrespected” and that people did not
talk to him because he is Kurdish.
He also testified regarding his injured nose and his experience with the Turkish
army. He stated that in 1996, his nose was injured and bleeding as a result of being
beaten by a police officer. At the hospital, he was told that nothing was wrong with him
and was sent home; he speculated that he was denied medical treatment because of the
2
Kurdish phrases displayed on his shirt. In 1999, he underwent a physical examination to
join the Turkish army, and the army physician informed him that his nose had been
broken. He joined the army in 2000, where he was given the worst job assignments and
was beaten because he is Kurdish. Ozdemir stated that he was hit on the feet numerous
times. After his time in the military, Ozdemir stated that he worked for several months
and then came to the United States. He testified that he feared being killed if he returned
to Turkey. He noted that two weeks before the hearing, his mother received a telephone
call asking whether he had returned home, but when she asked who was calling, the caller
ended the call.
Ozdemir was asked to clarify his testimony on cross-examination. When asked to
explain why his written statement indicates that his nose was broken in 2001, not in 1996,
Ozdemir testified that he first learned that it was broken during his army physical. When
questioned about why his testimony differed from his written statement indicating that his
nose was broken during an incident in 2001, when police poured cold water on him and
others during a Kurdish new year celebration, took them to jail, and beat them, breaking
his nose in the process, Ozdemir stated that the beating occurred but his nose was broken
on a previous date. He further stated that he was with Hadep for about one and-a-half
years when his house was burned. Ozdemir was also asked why his written statement
indicates that he joined the military in 1999 when he testified that he joined in 2000; his
response was that 1999 was when he passed his military physical. Ozdemir presented no
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documentary evidence regarding his involvement with Hadep or his military service.
The IJ denied relief. The IJ found that Ozdemir was ineligible for asylum because
his asylum application was not filed within one year of his arrival in the United States.
See 8 U.S.C. § 1158(a)(2)(B). The IJ further found that Ozdemir lacked credibility in his
testimony in support of his withholding and CAT claims, noting that his testimony was
inconsistent with his various written statements. The IJ further noted that Ozdemir’s
testimony mostly concerned his Kurdish ethnicity in general and dealt little with his
Hadep affiliation, in contrast with his written statements. On April 30, 2007, The BIA
issued a separate opinion dismissing the appeal. The BIA agreed that the asylum
application was untimely. The BIA also concluded that Ozdemir presented confusing and
conflicting testimony and written materials, noting the discrepancies regarding his broken
nose and the date when he joined the military, as well as the lack of corroborative
evidence of his injury, military service, or Hadep activities. Furthermore, the BIA
concluded that Ozdemir failed to establish the likelihood of persecution or torture to
obtain relief. This petition for review followed.
We have jurisdiction to review the BIA’s final order of removal under 8 U.S.C.
§ 1252(a). Our review is for substantial evidence, that is, “[w]e will defer to and uphold
the IJ’s adverse credibility determinations if they are ‘supported by reasonable,
substantial, and probative evidence on the record considered as a whole,’ but such
findings must be based on inconsistencies and improbabilities that ‘go to the heart of the
4
asylum claim.’” Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir. 2005) (quoting INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992)) (internal citation omitted). We must affirm
“unless the evidence not only supports a contrary conclusion, but compels it.” Zubeda v.
Ashcroft, 333 F.3d 463, 471 (3d Cir. 2003) (citations omitted).1
Ozdemir does not challenge the agency’s determinations regarding his eligibility
for asylum 2 or for CAT relief, so we deem those issues waived and will not address them
here. To prevail on his claim for withholding of removal under 8 U.S.C. § 1231(b)(3)(A),
it is Ozdemir’s burden to show that more likely than not he will be persecuted on account
of race, religion, nationality, membership in a particular social group, or political opinion
if removed to his home country. See Singh v. Gonzales, 406 F.3d 191, 196 (3d Cir.
2005). In determining whether persecution existed on account of political opinion, we
focus on whether the persecutor has attributed a political view to the victim and acted on
that attribution. Id. at 196. Ozdemir also brings due process claims that he was denied
the opportunity to be heard at a meaningful time in a meaningful manner. See Abdulai v.
Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001).
First, Ozdemir challenges the IJ’s finding that he was not credible. He focuses on
1
Ozdemir applied for asylum before May 11, 2005, and therefore the REAL ID Act’s
new standard for credibility determinations does not apply to him. Chukwu v. Attorney General
of the United States, 484 F.3d 185, 189 (3d Cir. 2007).
2
We note that we generally lack jurisdiction to review factual or discretionary
determinations related to the timeliness of an asylum application. Sukwanputra v.
Gonzales, 434 F.3d 627 (3d Cir. 2006).
5
the discrepancies between his testimony and his written statements concerning the date he
joined the military, arguing that the discrepancy was minor and tangential to his claim,
having clarified during hearing that 1999 was the year of his military physical
examination, while 2000 was the year when actual service commenced. However,
Ozdemir ignores the other specific aspects of his testimony that the IJ called into
question. For example, on one hand, he testified in detail regarding having his nose
broken in 1996, the hospital visit and the denial of medical treatment that followed, and
his later discovery of the extent of his injuries at his military physical. On the other hand,
that testimony was in conflict with his written statement, in which he detailed a different
series of events leading to him having his nose broken during an encounter with police in
2001, which involved being jailed in the aftermath of a Kurdish celebration. Also, he
testified that his participation in Hadep involved serving coffee and tea at meetings, and
that he was not harmed because of his Hadep party activities. However, his written
statement describes his participation in election campaigns and education outreach
programs, resulting in his arrest, detention, and abuse by police. These inconsistencies
involve more than a discrepancy in date. Indeed, Ozdemir’s varying accounts of events
directly impacts his claim of persecution. We conclude that the adverse credibility
finding was based on specific reasonable, substantial evidence supported by the record.
Next, Ozdemir contends that the IJ failed to make an individualized determination
in his case, resulting in a due process violation. See Abdulai, 239 F.3d at 549. He argues
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that the IJ erroneously found his testimony not credible and ignored his testimony
regarding the abuse he suffered in Turkey. Because we conclude that the IJ’s credibility
finding was not erroneous, we are unpersuaded by this argument.
Finally, Ozdemir argues that he was denied a fair hearing because the finding that
he did not testify credibly stemmed from an incompetent, or at least questionable,
translation by the interpreter at the hearing. Ozdemir asserts in his brief that he was
“unfamiliar with the Kurdish dialect of the interpreter.” Petitioner’s Brief at 16. In
support, he refers generally to two pages of the hearing transcript, where Ozdemir was
asked if he was having any trouble understanding the interpreter, and he responded that
there were “some words” that he did not understand. (A.R. 133-34.) Beyond this bare
reference, Ozdemir does not explain how any mistranslations negatively affected the
outcome of the proceedings. We are hard-pressed to accept the argument that the IJ’s
finding as to credibility was rooted in poor translation, especially where the record
reflects that Ozdemir’s counsel specifically requested the very translator at issue in light
of the translator’s certification to translate the Kurdish dialect spoken by Ozdemir.1 The
IJ did state his reluctance to disqualify the translator unless absolutely necessary, but
given the record in this case, we discern no error here.
We will deny the petition for review.
1
The record also reflects that the IJ granted a continuance so that Ozdemir’s counsel
could identify the particular translation needs for the merits hearing. As directed by the IJ,
counsel submitted a letter naming the Kurdish dialect Ozdemir spoke. The letter also identified
the translator at issue, by name, as a recommendation.
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