Al-Bedairy v. Ashcroft

MEMORANDUM^**

Ahmed Al-Bedairy, a native and citizen of Iraq, petitions for review of the Board of Immigration Appeals’s (“BIA”) order affirming the Immigration Judge’s (“IJ”) denial of his application for asylum and withholding of removal.

Where the BIA reviews the IJ’s decision de novo, our review is limited to the BIA’s decision, except to the extent that the IJ’s decision is expressly adopted. See Shah v. INS, 220 F.3d 1062, 1067 (9th Cir.2000). Accordingly, because the BIA articulated that it was affirming the IJ’s decision on the basis that the IJ “properly found on the merits” that Al-Bedairy’s testimony was not credible, we do not address the IJ’s alternative order that Al-Bedairy’s application was “pretermitted” because he was convicted of a “particularly serious crime.”

We must accept the adverse credibility finding if one of the identified grounds is supported by substantial evidence and goes to the heart of Al-Be-dairy’s claims of persecution in Iraq. See Li v. Ashcroft, 378 F.3d 959, 964 (9th Cir.2004). On this record, we conclude that the IJ’s finding that Al-Bedairy’s asylum and refugee applications do not mention the physical abuse he testified to diming his removal hearing is supported by substantial evidence. This inconsistency goes to the heart of his claims for asylum and withholding of removal and is not adequately explained by the alleged faulty translations. See He v. Ashcroft, 328 F.3d 593, 598 (9th Cir.2003) (apparent inconsistencies based on faulty or unreliable translations may not be sufficient to support a negative credibility finding).

Al-Bedairy further argues that the BIA erred in denying his motion to remand proceedings to the IJ for a determination of whether he is eligible for relief under the Convention Against Torture (“CAT”). The BIA explained that the motion was denied because Al-Bedairy failed to “meaningfully address” on appeal the IJ’s reasons for finding that his testimony lacked credibility. See Narayan v. Ashcroft, 384 F.3d 1065, 1068 (9th Cir.2004) (in ruling on remand motion, the BIA must give “specific, cogent reasons for a grant or denial”). The BIA did not abuse its discretion in denying Al-Bedairy’s motion to remand, see Konstantinova v. INS, 195 F.3d 528, 529 (9th Cir.1999) (“Decisions by the BIA to deny motions to remand ... are reviewed using the abuse of discretion standard.”), because Al-Bedairy failed to make a prima facie showing that “it is more likely than not that he ... would be tortured if removed to [Iraq].” 8 C.F.R. § 208.16(c)(2); see also Hamoui v. Ashcroft, 389 F.3d 821, 827-28 (9th Cir.2004) (granting petition for review on the basis that petitioner had established prima facie case for CAT relief).

Al-Bedairy’s due process claim regarding the IJ’s role at the hearing is subject to the exhaustion requirement because the claim is in the nature of a procedural error that the BIA could have remedied. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004) (holding that the court lacked subject-matter jurisdiction because petitioner’s due process challenge was “procedural in nature”). Because Al-Bedairy’s lawyer did not object at the hearing nor raise the due process argument before the BIA, we lack jurisdiction to review this claim.

PETITION DENIED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.