Ahmed v. Holder

11-2194-ag
Ahmed v. Holder
BIA
Chew, IJ
A093 448 089
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 24th day of April, two thousand twelve.
5
6 PRESENT:
7 RALPH K. WINTER,
8 ROBERT A. KATZMANN,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _______________________________________
12
13 EJAZ AHMED, AKA EJAZ AHMAD,
14 Petitioner,
15
16 v. 11-2194-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Theodore N. Cox, New York, New York
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Russell J.E. Verby, Senior
27 Litigation Counsel; Kristen
28 Giuffreda Chapman, Trial Attorney,
29 Office of Immigration Litigation,
30 United States Department of Justice,
31 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 Ejaz Ahmed, a native and citizen of Pakistan, seeks
6 review of a May 20, 2011, decision of the BIA affirming the
7 August 31, 2009, decision of Immigration Judge (“IJ”) George
8 T. Chew, which denied his application for asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Ejaz Ahmed, No. A093 448 089
11 (B.I.A. May 20, 2011), aff’g No. A093 448 089 (Immig. Ct.
12 N.Y. City Aug. 31, 2009). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as supplemented by the BIA. See Yan Chen
17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established. See
19 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,
20 562 F.3d 510, 513 (2d Cir. 2009).
21 For asylum applications such as Ahmed’s, governed by
22 the amendments made to the Immigration and Nationality Act
23 by the REAL ID Act of 2005, the agency may, considering the
2
1 totality of the circumstances, base a credibility finding on
2 inconsistencies in the applicant’s statements, without
3 regard to whether the inconsistencies go “to the heart of
4 the applicant’s claim.” See 8 U.S.C. § 1158(b)(1)(B)(iii);
5 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).
6 In this case, substantial evidence supports the agency’s
7 adverse credibility determination, based on both
8 inconsistencies between Ahmed’s testimony and an affidavit
9 he provided in support of his asylum application as well as
10 material omissions in his asylum application.
11 In an affidavit included with his asylum application,
12 Ahmed stated that on or about June 16, 2007, “ruffians” from
13 the Muslim Conference in Muzaffarabad attacked his home,
14 damaged his household goods, used “nasty” language, and
15 “severally [sic] beat [him] and injured [him].” However,
16 Ahmed testified that he was not home during the time of the
17 attack, and that his servant was injured and not himself
18 personally. As noted by the BIA, Ahmed testified that he
19 told the police he himself had been injured because he was
20 afraid they would not otherwise take the report. However,
21 Ahmed’s explanation of why he conflated his servant’s
22 experience with his own to the police did not explain why he
3
1 repeated that he had been beaten in a sworn statement. See
2 Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005)(the
3 agency need not credit an applicant’s explanations for
4 inconsistent testimony unless those explanations would
5 compel a reasonable fact-finder to do so).
6 In addition, Ahmed failed to disclose in his asylum
7 application that he departed for the United States and
8 returned to Pakistan after an alleged incident of past
9 persecution. The agency properly relied upon these
10 inconsistencies and omissions in finding Ahmed not credible.
11 See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at12 166 (“[a]n inconsistency and an omission are . . .
13 functionally equivalent”).
14 Therefore, in this case, the totality of the
15 circumstances supports the agency’s adverse credibility
16 determination, and we will defer to that finding. See
17 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.
18 Because the only evidence of a threat to Ahmed’s life or
19 freedom was his testimony, the well-founded adverse
20 credibility determination precludes success on the claims
21 for asylum, withholding of removal, and CAT relief. See
22 Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong
4
1 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.
2 2005)
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of
5 removal that the Court previously granted in this petition
6 is VACATED, and any pending motion for a stay of removal in
7 this petition is DISMISSED as moot. Any pending request for
8 oral argument in this petition is DENIED in accordance with
9 Federal Rule of Appellate Procedure 34(a)(2), and Second
10 Circuit Local Rule 34.1(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
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