Toussaint v. Holder

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 23 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
OLLINCE TOUSSAINT, No. 07-73687
Petitioner, Agency No. A98-546-995
v.
MEMORANDUM**
ERIC H. HOLDER, JR., Attorney
General,*
Respondent.
On Petition for Review of an Order.
of the Board of Immigration Appeals
Submitted May 12, 2011***
San Francisco, California
*
Eric H. Holder, Jr. is substituted for his predecessor, Michael B.
Mukasey, as Attorney General of the United States, pursuant to Federal Rule of
Appellate Procedure 43(c)(2).
**
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: GOULD and M. SMITH, Circuit Judges, and ST. EVE, District Judge.****
Petitioner Ollince Toussaint, a native and citizen of Haiti, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an Immigration Judge’s (“IJ”) order denying his application for asylum,
withholding of removal, and protection under the Convention Against Torture. We
have jurisdiction under 8 U.S.C. § 1252. We review credibility findings for
substantial evidence, Liu v. Holder, – F.3d –, 2011 WL 1651244, at *4 (9th Cir.
May 3, 2011), we review de novo claims of due process violations, Colmenar v.
INS, 210 F.3d 967, 971 (9th Cir. 2000), and we review for abuse of discretion the
BIA’s denial of a motion to remand, Lin v. Holder, 588 F.3d 981, 984 (9th Cir.
2009). We deny the petition for review.
Petitioner claims that the IJ’s conduct during the asylum hearing violated his
due process rights. Petitioner has failed, however, to demonstrate that “the
proceeding was so fundamentally unfair that [he] was prevented from reasonably
presenting his case.” Colmenar, 210 F.3d at 971 (internal quotation marks
omitted). To the contrary, petitioner was given an opportunity “to be represented
by counsel, prepare an application for . . . relief, and . . . present testimony and
****
The Honorable Amy J. St. Eve, United States District Judge for the
Northern District of Illinois, sitting by designation.
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other evidence in support of the application.” Zetino v. Holder, 622 F.3d 1007,
1013 (9th Cir. 2010) (quoting Vargas-Hernandez v. Gonzales, 497 F.3d 919,
926–27 (9th Cir. 2007) (ellipses in original and internal quotation marks omitted)).
Accordingly, petitioner’s due process claim fails.
In addition, substantial evidence supports the BIA’s affirmance of the IJ’s
adverse credibility finding. See Liu, – F.3d –, 2011 WL 1651244, at *4. As
petitioner concedes, the statements he made in his asylum application, his asylum
interview, and his removal hearing contained discrepancies, inconsistencies, and
omissions regarding his alleged experience of political persecution. Petitioner’s
testimony regarding events that preceded (and precipitated) his departure relate
directly to the basis of his asylum claim. See Chebchoub v. INS, 257 F.3d 1038,
1043 (9th Cir. 2001) (explaining that an IJ may base his credibility finding on
discrepancies and inconsistencies that relate to the basis for the alien’s alleged fear
of persecution and relate to the heart of the asylum claim).
Finally, the BIA did not abuse its discretion in denying petitioner’s motion
to reopen where he failed to show prima facie eligibility for the relief sought.
Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1063–64 (9th Cir. 2008). Nor did
petitioner establish that the “evidence sought to be offered [wa]s material and was
not available and could not have been discovered or presented at the former
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hearing.” Rodriguez v. INS, 841 F.2d 865, 867 (9th Cir. 1987) (internal quotation
marks omitted).
PETITION FOR REVIEW DENIED.
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