Boodhoo v. Sessions

15-2952
Boodhoo v. Sessions
BIA
Montante, IJ
A041 599 282
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 13th day of March, two thousand seventeen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 PIERRE N. LEVAL,
9 JOSÉ A. CABRANES,
10 Circuit Judges.
11 _____________________________________
12
13 ODITNARIAN BOODHOO,
14 Petitioner,
15
16 v. 15-2952
17 NAC
18 JEFFERSON B. SESSIONS, III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Richard W. Chen, New York, N.Y.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy,
26 Assistant Attorney General, Anthony
27 W. Norwood, Senior Litigation
28 Counsel, Manuel A. Palau, Trial
29 Attorney, Office of Immigration
30 Litigation, United States
31 Department of Justice, Washington,
32 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 is
4 DENIED.
5 Petitioner Oditnarian Boodhoo, a native and citizen of
6 Guyana, seeks review of an August 20, 2015, decision of the BIA
7 affirming an August 21, 2014, decision of an Immigration Judge
8 (“IJ”) denying Boodhoo’s application for asylum, withholding
9 of removal, and relief under the Convention Against Torture
10 (“CAT”). In re Boodhoo, No. A041 599 282 (B.I.A. Aug. 20,
11 2015), aff’g No. A041 599 282 (Immig. Ct. Buffalo Aug. 21, 2014).
12 We assume the parties’ familiarity with the underlying facts
13 and procedural history in this case.
14 Under the circumstances of this case, we have reviewed the
15 IJ’s decision as modified by the BIA, i.e., minus the arguments
16 for denying relief that were rejected by the BIA. See Xue Hong
17 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
18 Moreover, because the adverse credibility determination is
19 dispositive, we discuss only that basis of the agency’s
20 decision. INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a
21 general rule courts and agencies are not required to make
22 findings on issues the decision of which is unnecessary to the
23 results they reach.”). We conclude that the adverse
2
1 credibility determination is supported by substantial
2 evidence. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
3 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). “Considering the
4 totality of the circumstances,” the agency may “base a
5 credibility determination on” the consistency in the
6 applicant’s statements “without regard to whether an
7 inconsistency . . . goes to the heart of the applicant’s claim.”
8 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.
9 “A petitioner ‘must do more than offer a plausible explanation
10 for his inconsistent statements to secure relief; he must
11 demonstrate that a reasonable fact-finder would be compelled
12 to credit his testimony.’” Majidi v. Gonzales, 430 F.3d 77,
13 80 (2d Cir. 2005) (quoting Zhou Yun Zhang v. INS, 386 F.3d 66,
14 76 (2d Cir. 2004)). Furthermore, a petitioner’s “failure to
15 corroborate his . . . testimony may bear on credibility.” See
16 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).
17 Substantial evidence supports the agency’s determination
18 that Boodhoo was not credible. First, to prove that he had
19 filed a police report, Boodhoo submitted an affidavit in which
20 his cousin professed to have tried, but failed, to obtain the
21 report from the Guyanese police. When questioned, however,
22 Boodhoo did not recognize the name of the individual who made
23 the affidavit, thereby calling into question the validity of
3
1 his evidence and whether he had reported drug activity to the
2 police. The agency reasonably relied on this discrepancy and
3 was not required to accept Boodhoo’s explanation that he might
4 only know his cousin by his nickname or that his lack of literacy
5 caused the misunderstanding. See Majidi, 430 F.3d at 80. It
6 was not unreasonable for the IJ to require Boodhoo to be familiar
7 with his own evidence, particularly from family members.
8 The agency also reasonably relied on Boodhoo’s omission of
9 his stop in Trinidad between Guyana and Canada from his
10 application, particularly given that he admitted to purchasing
11 a passport in Trinidad to facilitate his entry into Canada.
12 The agency may rely on any inconsistency, “without regard to
13 whether” it goes “to the heart of the applicant’s claim.”
14 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.
15 Third, the agency reasonably relied on Boodhoo’s failure
16 to corroborate the threats central to his claim of persecution.
17 Boodhoo alleged that he left Guyana and returned to the United
18 States on the basis of two events: a friend, Reve, telling him
19 that the Phantom Gang had put a hit out on him, and his neighbors
20 telling him that armed men had come to his house looking for
21 him while he was out. Boodhoo did not provide affidavits,
22 letters, or other support from either Reve or his neighbors.
23 See Biao Yang, 496 F.3d at 273. Given the inconsistencies and
4
1 lack of corroboration, substantial evidence supports the
2 agency’s adverse credibility determination. See Xiu Xia Lin,
3 534 F.3d at 165-66.
4 Boodhoo also challenges the IJ’s decision declining to
5 transfer venue from Buffalo to New York City. Remand is
6 warranted only if the agency abused its discretion and the
7 denial of transfer prejudiced Boodhoo. See Monter v. Gonzales,
8 430 F.3d 546, 558-59 (2d Cir. 2005). Boodhoo failed to show
9 prejudice. Transferring the case to New York City would not
10 have helped Boodhoo present the evidence that was fatally
11 missing from his application, namely, evidence from Reve and
12 Boodhoo’s neighbors in Guyana, the only people who had firsthand
13 information of threats against Boodhoo.
14 Finally, we find no abuse of discretion in the BIA’s refusal
15 to remand for consideration of new evidence. See Li Yong Cao
16 v. U.S. Dep’t of Justice, 421 F.3d 149, 156 (2d Cir. 2005)
17 (reviewing remand rulings for abuse of discretion). On appeal
18 to the BIA, Boodhoo submitted transcripts from his criminal
19 proceeding for grand larceny. The BIA did not abuse it
20 discretion in finding that the transcripts would have no impact
21 on Boodhoo’s case: his criminal conviction was unrelated to the
22 bases for the credibility ruling and did not affect either his
23 claim of past persecution or his fear of future persecution.
5
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of removal
3 that the Court previously granted in this petition is VACATED,
4 and any pending motion for a stay of removal in this petition
5 is DISMISSED as moot. Any pending request for oral argument
6 in this petition is DENIED in accordance with Federal Rule of
7 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
8 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
6