Ilir Osmani v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION
AUG 12 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ILIR OSMANI, Nos. 14-70291
14-71181
Petitioner, 14-73738
v. Agency No. A089-100-067
LORETTA E. LYNCH, Attorney General,
MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 2, 2016
Anchorage, Alaska
Before: FISHER, PAEZ and HURWITZ, Circuit Judges.
Petitioner Ilir Osmani petitions for review of the denial by the Board of
Immigration Appeals (BIA) of his applications for asylum, withholding of removal
and protection under the Convention Against Torture, and the subsequent denials
of his motions to reconsider and reopen. We have jurisdiction under 8 U.S.C.
§ 1252 and we dismiss all three petitions.
*
This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
1. We review the agency’s adverse credibility determinations for substantial
evidence. See Rizk v. Holder, 629 F.3d 1083, 1087-88 (9th Cir. 2011). Here, the
Immigration Judge (IJ) concluded Osmani was not credible in part because he did
not present a clear timeline for his party membership or the stabbing he allegedly
suffered at the hands of members of the opposing party, and because he appeared
evasive when asked to explain inconsistencies in his testimony regarding his
passport. Substantial evidence supports these two grounds, which the BIA adopted
in affirming the IJ’s decision. Under the REAL ID Act, an IJ may base an adverse
credibility determination on inconsistencies in an applicant’s testimony, as well as
his demeanor and apparent evasiveness. See Shrestha v. Holder, 590 F.3d 1034,
1043 n.4, 1044 (9th Cir. 2010).
2. We review for abuse of discretion the BIA’s denial of a motion to
reconsider or reopen. See Morales Apolinar v. Mukasey, 514 F.3d 893, 895 (9th
Cir. 2008). Here, the BIA did not abuse its discretion in denying Osmani’s motion
to reconsider, because he failed to raise the alleged deficiencies in the transcript on
his initial appeal to the BIA and otherwise sought only to reargue issues previously
addressed without specifying any error of fact or law in the BIA’s earlier decision.
See 8 C.F.R. § 1003.2(b)(1). Nor did the BIA abuse its discretion in declining to
reconsider its earlier decision sua sponte in light of the gaps in the hearing
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transcript. Although the state of the transcript is troubling, the gaps do not affect
our ability to review Osmani’s testimony, and Osmani does not explain how a
better transcription would have affected the outcome of his claim. See Singh v.
Ashcroft, 367 F.3d 1139, 1143-44 (9th Cir. 2004).
3. When faced with an ineffective assistance of counsel claim in the
immigration context, we review questions of law and claims of due process
violations de novo and findings of fact regarding counsel’s performance for
substantial evidence. See Lin v. Ashcroft, 377 F.3d 1014, 1023-24 (9th Cir. 2004).
Here, we conclude the BIA did not abuse its discretion in denying Osmani’s
motion to reopen. Whether or not Osmani complied with the procedural
requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988),
substantial evidence and our own review of the record support the BIA’s
conclusion that Osmani’s counsel’s performance did not render the “proceeding
. . . so fundamentally unfair that [Osmani] was prevented from reasonably
presenting his case,” Lin, 377 F.3d at 1023 (internal quotation mark omitted)
(quoting Lopez v. INS, 775 F.2d 1015, 1017 (9th Cir. 1985)). The BIA found
Osmani’s attorney represented him adequately at the hearing, filed a well-written
closing argument and gave Osmani a full and fair opportunity to present his case.
We agree.
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PETITIONS FOR REVIEW DENIED.
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