Moodie v. Attorney General of the United States , 448 F. App'x 280 ( 2011 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-2048
___________
PHILLIP A. MOODIE,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A088-439-880)
Immigration Judge: Honorable Jesus Clemente
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 13, 2011
Before: RENDELL, CHAGARES AND ALDISERT, Circuit Judges
(Opinion filed: October 14, 2011)
___________
OPINION
___________
PER CURIAM
Phillip Moodie, a citizen of Jamaica, seeks review of a decision of the Board of
Immigration Appeals (“BIA”) upholding the denial of his application for asylum,
withholding of removal, and protection under the Convention Against Torture (“CAT”).
For the following reasons, we will deny the petition for review.
I.
Moodie entered the United States most recently on January 30, 2008. In April
2010, he was detained by federal immigration authorities after he was arrested on a state
charge and placed in removal proceedings for overstaying his visa. He conceded
removability, but filed an application for asylum, withholding of removal, and protection
under the CAT based on his fear that, if returned to Jamaica, he would be persecuted by
drug dealers because he had worked as a confidential informant for Immigration and
Customs Enforcement (“ICE”).
Moodie claimed that, beginning in the summer of 2007, he served as an informant
to ICE Special Agent Vance Callender. At a hearing before an Immigration Judge (“IJ”),
he testified that he met with Callender three times and provided information on numerous
drug dealers that he acquired through a friend who worked as a disc jockey at the drug-
dealers’ parties. In November 2007, Moodie travelled to the United States on a work
visa. He testified that, when he returned to Jamaica on January 28, 2008, he learned from
his friends, Jason and Floyd, that the drug dealers upon whom he informed had placed
him on a hit list. Additionally, his apartment in Jamaica had been broken into, and he
assumed that the drug dealers were responsible because the place was ransacked and his
furniture destroyed. Moodie returned to the United States two days later and
subsequently terminated his relationship with Callender. In support of his claims, he
prepared a list of individuals, including the Prime Minister of Jamaica, upon whom he
had allegedly informed.
2
On cross-examination, the government introduced an email from Callender stating
that Moodie wanted to be an informant but that he had no useful information. Callender
added that Moodie “only was trying to get a visa” and that he “did absolutely no work for
ICE and constantly tries to use his association with ICE (which consists of one meeting)
to get around.” (R. 253.) After being presented with the email, Moodie asked the IJ for
an opportunity to produce email correspondence between himself and Callender, which
the IJ found to be a dilatory tactic and denied because of the last-minute nature of the
request. On the same basis, the IJ denied Moodie’s request to subpoena Callender and
another ICE agent who allegedly spoke with Callender at Moodie’s request, observing
that Moodie had plenty of time to submit subpoenas before the hearing but did not do so.
The IJ concluded that Moodie’s asylum claim was time-barred and rejected his
remaining claims based upon his finding that Moodie did not testify credibly.
Accordingly, the IJ ordered Moodie removed to Canada with the United Kingdom as an
alternate, per Moodie’s request, but also designated Jamaica as an alternate in the event
the other countries did not accept him. The BIA dismissed Moodie’s appeal, essentially
adopting the IJ’s decision in its entirety, and declined to remand based on additional
documents that Moodie submitted, which included subpoenas for the witnesses he was
precluded from presenting at the hearing. Moodie filed a timely pro se petition for
review.
3
II.
This Court has jurisdiction to review the final order of removal pursuant to 8
U.S.C. § 1252. However, our review is limited to Moodie’s withholding of removal and
CAT claims because we lack jurisdiction to review the agency’s determination that
Moodie’s asylum application is untimely.1 See 8 U.S.C. § 1158(a)(3); Tarrawally v.
Ashcroft, 338 F.3d 180, 185 (3d Cir. 2003). We review the findings upon which the
BIA’s decision rests for substantial evidence, but exercise de novo review over the BIA’s
legal conclusions and Moodie’s due process claims. Huang v. Att’y Gen., 620 F.3d 372,
379 (3d Cir. 2010); Abdulrahman v. Ashcroft, 330 F.3d 587, 595-96 (3d Cir. 2003). We
may review the IJ’s decision because it was implicitly adopted by the BIA. See Zhang v.
Gonzales, 405 F.3d 150, 155 (3d Cir. 2005).
Moodie contends that the agency erred in finding his testimony not credible. We,
however, conclude that the IJ’s adverse credibility finding was supported by “specific,
cogent reasons” for discrediting Moodie’s testimony. Thu v. Att’y Gen., 510 F.3d 405,
412 (3d Cir. 2007) (quotations omitted). The IJ found that Moodie lied about serving as
an informant due to Callender’s email to the contrary. Additionally, the IJ found
Moodie’s testimony concerning his alleged persecution by drug dealers not to be credible
because (1) he failed to provide any details regarding the drug organization that he
1
We also lack jurisdiction to consider Moodie’s challenges to his detention, which must
be pursued in a petition for habeas corpus. See Nnadika v. Att’y Gen., 484 F.3d 626,
630-33 (3d Cir. 2007). Nor may we consider his allegations that his constitutional rights
were violated during the course of his state criminal proceeding.
4
allegedly fears; (2) despite testifying that he knew Jason and Floyd since before high
school, Moodie, who was 27 years old when he encountered them in Jamaica, did not
know their surnames; (3) it was implausible that Jason and Floyd would know of a threat
against Moodie based solely on the fact that they are “street kids” who “know
everything”; (4) Moodie’s assertion that drug dealers broke into his apartment was mere
speculation; and (5) Moodie could have compiled his list of drug dealers from
information in the public domain. (R. 59-63.)
Moodie does little to undermine those reasons, other than stating his belief that he
testified credibly and questioning the IJ’s conclusion that his list of alleged drug dealers
could have been fabricated. But even removing that reason from the calculus, the IJ’s
remaining reasons for rejecting Moodie’s testimony are firmly supported by the record
and justify the adverse credibility determination.2 See Chen v. Ashcroft, 376 F.3d 215,
226 (3d Cir. 2004). Accordingly, the agency appropriately rejected Moodie’s claims
based on the IJ’s adverse credibility finding.
Moodie also alleges myriad due process violations, many of which are grounded
in his inability to call witnesses or produce information establishing that he was, in fact,
an ICE informant.3 We lack jurisdiction to consider Moodie’s allegation that the IJ
2
Because Moodie filed his application after the enactment of the REAL ID Act, the
inconsistencies, inaccuracies, or falsehoods upon which the IJ’s adverse credibility
finding is based need not go the heart of his claims. See § 1158(b)(1)(B)(iii).
Regardless, the inconsistencies, inaccuracies, or falsehoods relied on by the IJ in finding
Moodie not credible do, in fact, go to the heart of his claims.
3
We agree with the government that, to the extent Moodie alleges violations of
5
violated his due process rights by denying his request to subpoena witnesses because
Moodie failed to challenge that procedural ruling before the BIA.4 See Khan v. Att’y
Gen., 448 F.3d 226, 236 n.8 (3d Cir. 2006). We also reject Moodie’s contention that the
BIA violated due process by failing to acknowledge his subpoenas or mandate “an all-out
investigation by the Department of Justice.” The BIA has no authority to subpoena
witnesses or order the Department of Justice to conduct an internal investigation, and
generally may not consider new evidence on appeal.5 See Sheriff v. Att’y Gen., 587 F.3d
584, 592 (3d Cir. 2009); see also 8 C.F.R. § 1003.1(d)(3)(iv). Furthermore, the BIA
acted within its discretion in refusing to remand based on Moodie’s belated subpoenas,
especially since there is no indication that his witnesses would have changed the outcome
of his case. See Caushi v. Att’y Gen., 436 F.3d 220, 231 (3d Cir. 2006); see supra n.4.
Moodie’s remaining due process claims also lack merit. First, although the IJ
could have been more lenient with Moodie, nothing in the record reflects bias or
additional constitutional rights without describing the basis for those violations, he has
waived those claims. See United States v. Hoffecker, 530 F.3d 137, 161 (3d Cir. 2008).
4
Even if he had raised the issue, Moodie cannot establish substantial prejudice, as is
necessary to prevail on his due process claim. See Delgado-Sobalvarro v. Att’y Gen.,
625 F.3d 782, 787 (3d Cir. 2010). Assuming that Moodie’s witnesses would have
testified to his status as an ICE informant, which is unlikely, Moodie still cannot
overcome the IJ’s finding that he failed to testify credibly concerning the January 2008
events that form the basis for his withholding of removal and CAT claims. Furthermore,
Moodie had a sufficient opportunity to request witnesses before the hearing, but never
applied for a subpoena or asked the IJ for an extension so that he could pursue additional
evidence. See 8 C.F.R. §§ 1003.35 & 1003.31(c).
5
The subpoenas that Moodie submitted to this Court in support of his petition for review
are equally futile, as our review is limited to the administrative record. See 8 U.S.C. §
1252(b)(4)(A).
6
improper conduct so as to support a conclusion that the IJ abandoned his role as a neutral
fact-finder. See Wang v. Att’y Gen., 423 F.3d 260, 267-70 (3d Cir. 2005); Abdulrahman,
330 F.3d at 596-97. Second, Moodie’s assertion that the BIA violated due process by
failing to consider all of the evidence – which seems to be based solely on the fact that
the agency rejected his claims – lacks merit because the adverse credibility finding upon
which the BIA’s decision rests is supported by the record. Third, we have rejected the
applicability of a state-created danger theory in immigration cases, so Moodie is not
entitled to any relief on that basis. See Kamara v. Att’y Gen., 420 F.3d 202, 217-18 (3d
Cir. 2005). Finally, we reject Moodie’s claim that the BIA violated Federal Rule of
Appellate Procedure 34 as well as his procedural due process rights because one Board
member denied his request for oral argument instead of a three-judge panel.6 Rule 34 is
inapplicable to the BIA, which is instead governed by 8 C.F.R. § 1003.1(e), and the BIA
clearly complied with that regulation in rejecting Moodie’s request for oral argument.
See § 1003.1(e)(7) (“No oral argument will be allowed in a case that is assigned for
disposition by a single Board member.”).
For the above reasons, we will deny Moodie’s petition for review.
6
The government contends that we lack jurisdiction to address that claim. To the
contrary, we have jurisdiction over claims that the agency violated its own procedural
rules, which is the apparent basis for Moodie’s allegation here. See Purveegiin v.
Gonzales, 448 F.3d 684, 688-92 (3d Cir. 2006) (jurisdiction existed over claim that BIA
was required to refer petitioner’s case for three-member review); see also Billeke-Tolosa
v. Ashcroft, 385 F.3d 708, 709 (6th Cir. 2004).
7