Peba v. Holder

FILED
NOT FOR PUBLICATION SEP 06 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EUGENE PEBA, No. 07-71288
Petitioner, Agency No. A095-716-419
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 1, 2011**
Pasadena, California
Before: ALARCÓN, O’SCANNLAIN, and SILVERMAN, Circuit Judges.
Eugene Peba, a citizen and national of Nigeria, petitions for review of the
Board of Immigration Appeals’ (“BIA”) dismissal of his appeal from an adverse
credibility determination on which the immigration judge’s (“IJ”) denial of his
application for asylum, withholding of removal, and protection under the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Convention Against Torture (“CAT”) was based.1 We have jurisdiction pursuant
to 8 U.S.C. § 1252, and we deny the petition.2
I
As an initial matter, we note that Peba did not challenge the IJ’s admission
of portions of his personal journal into evidence in his appeal to the BIA. By
operation of 8 U.S.C. § 1252(d)(1), this court lacks jurisdiction to consider his
claims of procedural error and a due process violation. See Vargas v. INS, 831
F.2d 906, 908 (9th Cir. 1987) (“‘[A] petitioner cannot obtain review of procedural
errors in the administrative process that were not raised before the agency merely
by alleging that every such error violates due process.’” (quoting Reid v. Engen,
765 F.2d 1457, 1461 (9th Cir. 1985))). Similarly, Peba has waived the ineffective
assistance of counsel argument he attempts to raise for the first time in his Reply
Brief to this Court. See Bazuaye v. INS, 79 F.3d 118, 120 (9th Cir. 1996) (“Issues
raised for the first time in the reply brief are waived”).
II
1
In his briefing before this court, Peba did not challenge the agency’s denial
of relief under CAT.
2
On June 13, 2008, this Court dismissed for lack of jurisdiction Peba’s
untimely petition for review of the BIA’s denial of his motion to reopen and
reconsider (Case No. 07-73558). Accordingly, this issue, although raised in Peba’s
opening brief, is moot.
2
Peba challenges the agency’s adverse credibility finding, which rests on a
discrepancy between sworn statements in Peba’s application and his hearing
testimony recounting his parents’ January 2000 abduction by, and presumed death
at the hands of, the Nigerian military because they were members of the Ogoni
tribe and engaged in activities in support of it, and the reference in two letters Peba
drafted in 2005, to his biological father’s location, employment, and contact
information.
Our review of the adverse credibility determination focuses only on the
actual reasons relied upon by the agency, Marcos v. Gonzales, 410 F.3d 1112,
1116 (9th Cir. 2005), which we review for substantial evidence. See Don v.
Gonzales, 476 F.3d 738, 741 (9th Cir. 2007) (“[C]redibility findings will be upheld
unless the evidence compels a contrary result.”). Because Peba’s application for
asylum was filed on May 25, 2006, it is subject to the REAL ID Act amendments
to the Immigration and Nationality Act (“INA”). Pub. L. 109-13, Div. B, Title I, §
101(h)(2), 119 Stat. 231 (May 11, 2005). Under the REAL ID Act amendments to
the INA, an adverse credibility finding may be based on “any inaccuracies”
between an applicant’s written and oral statements and any other evidence in the
record “without regard to whether an inconsistency, inaccuracy, or falsehood goes
to the to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see also
3
Shrestha v. Holder, 590 F.3d 1034, 1043 (9th Cir. 2010) (explaining that “[t]he
REAL ID Act implemented an important substantive change concerning the kinds
of inconsistencies that may give rise to an adverse credibility determination” in that
“[i]nconsistencies no longer need to ‘go to the heart’ of the petitioner’s claim. . .
.”).
Here, Peba’s sworn statements that his father had been presumed dead since
his abduction by the Nigerian security forces in 2000,3 concern events central to his
testimony regarding his reasons for fleeing from persecution in Nigeria. See
Shrestha at 1046-47. (“[U]nder the REAL ID Act, “[a]lthough inconsistencies no
longer need to go to the heart of the petitioner’s claim, when an inconsistency is at
the heart of the claim it doubtless is of great weight.”). The record reflects that the
IJ provided Peba an opportunity to explain this material inconsistency, and that the
IJ considered and addressed “otherwise appropriate, relevant evidence that tend[ed]
to contravene a conclusion” that the inconsistency undermined Peba’s credibility.
3
During a November 28, 2005 interview with an Immigration Services
Officer, Peba stated that both of his parents were deceased. In his declaration in
support of his May 25, 2006 asylum application, Peba stated that, since his parents
were detained by security forces in January 2000, he had been unable to confirm
whether they were alive or dead. At the July 25, 2006 hearing on his case, in
response to questioning by the Government about his earlier accounts of his
parents’ fate, Peba confirmed that his father had disappeared in, and been
presumed dead since, 2000.
4
Id. at 1043-44. The IJ did not ignore favorable evidence; rather, he concluded that,
despite it, the inconsistency was so significant that it rendered Peba’s account
unreliable. Accordingly, Peba’s asylum and withholding of removal claims fail
because the record evidence does not compel a conclusion that the inconsistency
about his father’s fate was immaterial or otherwise insufficient to support the
adverse credibility determination in this case.
We DISMISS Peba’s petition for review as to his claims that the IJ’s
admission into evidence some of his personal papers constituted procedural or
constitutional error. We DENY Peba’s petition for review of the agency’s denial
of his asylum and withholding of removal claims on the basis of an the adverse
credibility determination.
DISMISSED in part and DENIED in part.
5