Chiadi v. Lynch

13-3940-ag
Chiadi v. Lynch
BIA
Laforest, IJ
A096 506 966
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”).
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BY COUNSEL.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
10th day of March, two thousand sixteen.
PRESENT:
REENA RAGGI,
DEBRA ANN LIVINGSTON,
DENNY CHIN,
Circuit Judges.
_____________________________________
OLUCHI NNENNA CHIADI,
Petitioner,
v. 13-3940-ag
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,*
Respondent.
_____________________________________
FOR PETITIONER: Albert Van-Lare, Law Offices of
Albert Van-Lare, New York, New York.
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Loretta E. Lynch is automatically substituted
for former Attorney General Eric H. Holder, Jr. as Respondent.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Eric W. Marsteller, Senior
Litigation Counsel; Remi da
Rocha-Afodu, Trial Attorney, Office
of Immigration Litigation,
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 Oluchi Nnenna Chiadi, a native and citizen of
Nigeria, seeks review of a September 16, 2013 decision of the
BIA affirming an August 20, 2009 decision of an Immigration
Judge (“IJ”) denying Chiadi’s application for asylum,
withholding of removal, and relief under the Convention Against
Torture (“CAT”). See In re Oluchi Nnenna Chiadi, No. A096 506
966 (B.I.A. Sept. 16, 2013), aff’g No. A096 506 966 (Immig. Ct.
N.Y.C. Aug. 20, 2009). We assume the parties’ familiarity with
the underlying facts and procedural history in this case.
Under the circumstances of this case, we have reviewed the
IJ’s decision as modified by the BIA. See Xue Hong Yang v. U.S.
Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). In
addition, because Chiadi does not challenge the agency’s denial
of asylum as untimely, our review is further limited to the
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agency’s adverse credibility determination as it pertains to
her application for withholding of removal and CAT relief. See
Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d
Cir. 2005) (Sotomayor, J.). Notwithstanding the government’s
argument to the contrary, we deem Chiadi’s challenge to the
adverse credibility determination sufficiently exhausted, as
the BIA addressed and affirmed the IJ’s findings in this regard.
See Waldron v. INS, 17 F.3d 511, 515 n.7 (2d Cir. 1993). The
applicable standards of review are well established. See 8
U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
513 (2d Cir. 2009).
For asylum applications like Chiadi’s, governed by the REAL
ID Act, the agency may, “[c]onsidering the totality of the
circumstances,” base a credibility finding on inconsistencies
in an applicant’s statements and other record evidence “without
regard to whether” they go “to the heart of the applicant’s
claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey,
534 F.3d 162, 163–64 (2d Cir. 2008).
In this case, the totality of the circumstances supports
the agency’s adverse credibility determination. See Xiu Xia
Lin, 534 F.3d at 163-64. We have held that in certain
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circumstances “a single false document or a single instance of
false testimony may (if attributable to the petitioner) infect
the balance of the alien’s uncorroborated or unauthenticated
evidence.” Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007).
Thus, the IJ reasonably based her adverse determination on a
finding that Chiadi entered into a marriage for the purpose of
securing immigration benefits, and failed fully to acknowledge
that fraud during her hearing. This finding was sufficiently
supported by Chiadi’s ex-husband’s affidavit; and Chiadi’s own
statements that she did not know why she married, had neither
lived with her husband nor consummated the marriage, and had
given her husband money.
The IJ also reasonably identified several record
inconsistencies that undermine Chiadi’s allegation of past
persecution and her professed fear of future persecution. For
example, Chiadi testified that she did not apply for asylum when
she came to the United States in 2003 because she did not yet
know of her husband’s involvement with a cult; but she
immediately contradicted herself by testifying that cult
members had contacted her on two occasions prior to 2003,
encounters that Chiadi had omitted from her original asylum
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application. See Xiu Xia Lin, 534 F.3d at 166 n.3 (explaining
that inconsistency and omission are “functionally
equivalent”). The omission is significant because the
contacts were the basis of Chiadi’s claimed fear of the cult.
See Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 295
(2d Cir. 2006). Accordingly, because the agency’s adverse
credibility determination was supported by substantial
evidence, it properly denied both withholding of removal and
CAT relief, as these claims were based on the same factual
predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir.
2006).
Insofar as Chiadi argues that her representative before the
BIA was ineffective, in part, because he filed a poor brief,
we decline to consider that claim here because Chiadi failed
to raise it before the BIA in the first instance. See
Arango-Aradondo v. INS, 13 F.3d 610, 614 (2d Cir. 1994); accord
Garcia-Martinez v. Dep’t of Homeland Sec., 448 F.3d 511, 513–
14 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
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and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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