Ahmed v. Holder , 765 F.3d 96 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-2254
MOHAMED OSMAN AHMED,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Thompson, Selya and Lipez,
Circuit Judges.
Robert Huntington on brief for petitioner.
Stuart F. Delery, Assistant Attorney General, Civil Division,
Blair T. O'Connor, Assistant Director, and Joseph D. Hardy, Trial
Attorney, Office of Immigration Litigation, United States
Department of Justice, on brief for respondent.
September 2, 2014
SELYA, Circuit Judge. Over half a century ago, an
impresario named Ralph Edwards shot to fame as the host of a radio
show called "Truth or Consequences." The lesson of the show was
that playing fast and loose with the truth will often backfire and
produce undesirable results. That lesson has continuing relevance
today.
In this case, the immigration judge (IJ) and the Board of
Immigration Appeals (BIA), prompted by what they plausibly
perceived to be the petitioner's pernicious pattern of
prevarication, refused to grant relief from removal. After careful
consideration of the agency's findings and the consequences to the
petitioner that flow from those findings, we discern no basis for
a favorable exercise of our power of judicial review.
The background facts are easily assembled. The
petitioner, Mohamed Osman Ahmed, is a Somalian national who
originally entered the United States in 1983 on a student visa and
overstayed. Seven years later, he applied for asylum, professing
a fear of persecution rooted in his alleged association with two
groups to which the reigning Somali dictator Mohamed Siad Barre was
opposed: the Somali Salvation Democratic Front (SSDF) and the
Majerteen clan. The application languished.
Five years later, the petitioner traveled to Canada and
applied for asylum there under a different name (Suudi Mahad Ishaq)
and on a somewhat different basis: a fear of persecution because
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the United Somali Congress (USC) purportedly wanted to eliminate
members of the Majerteen clan. This petition met an abrupt end in
1996, when the petitioner returned to the United States.
United States Border Patrol agents in Vermont discovered
the petitioner in the company of several naturalized Canadians of
Somali origin who had recently been denied entry into the United
States from Canada. The petitioner and his travel companions gave
inconsistent answers about their agenda, raising agents'
suspicions. Consultation with Canadian immigration authorities
revealed the existence of the Canadian asylum application that the
petitioner had filed under his nom de guerre. Canadian authorities
summarily canceled the petitioner's Canadian asylum application as
fraudulently filed.
We fast-forward to 2000, when the federal government
charged the petitioner with removability as an alien present
without having been admitted or paroled after inspection. See 8
U.S.C. § 1182(a)(6)(A)(i). The petitioner responded in June of
2001 by filing a new application requesting asylum (his first
asylum application having been deemed abandoned when he decamped
for Canada), withholding of removal, and protection under the
United Nations Convention Against Torture (CAT). Along with this
new application came a new justification: fear of persecution in
Somalia at the hands of al-Shabaab, a militant group known for
violent attacks on Sufi Muslims.
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There followed a long road of procedural twists and
turns, which we need not chart (except to note that the petitioner,
through counsel, conceded in written pleadings that he was present
in the United States without having been admitted or paroled after
inspection). At the end of this road, the IJ denied all the
petitioner's requests for relief and ordered him removed to
Somalia. The IJ premised his decision on an adverse credibility
determination, explaining that the petitioner had been guilty of
"considerable inconsistencies, omissions, and untruths."
The BIA affirmed in all respects (including affirmance of
the IJ's refusal to allow the petitioner to amend his pleadings).
This petition for judicial review followed.
Before us, the petitioner argues that the agency (i)
erroneously denied him relief from removal, (ii) improperly refused
to let him amend his pleadings, and (iii) abridged his due process
rights. We address these arguments sequentially.
We begin with the petitioner's flagship contention: that
both the IJ and the BIA applied the wrong legal standard in denying
his application for asylum. Specifically, he asserts that the
agency made its adverse credibility determination by applying the
relevant provision of the REAL ID Act of 2005, see 8 U.S.C.
§ 1158(b)(1)(B)(ii)-(iii), whereas it should have applied pre-
existing law. We review this claim of legal error de novo. See
Jianli Chen v. Holder, 703 F.3d 17, 21 (1st Cir. 2012). Because
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the BIA wrote separately while also approving the IJ's decision,
our review is directed at both of those decisions. See id.
A brief historical preface helps to focus the
petitioner's argument. For many years, adverse credibility
determinations in immigration cases were governed by the so-called
"heart of the matter" rule. See, e.g., Seng v. Holder, 584 F.3d
13, 18 & n.2 (1st Cir. 2009); Bebri v. Mukasey, 545 F.3d 47, 50 &
n.1 (1st Cir. 2008). In 2005, however, Congress enacted the REAL
ID Act. See Pub. L. No. 109-13, § 101(a)(3), 119 Stat. 302, 303.
That Act eased the requirements for making adverse credibility
determinations, but the new standard was meant to apply only
prospectively to applications for asylum filed after May 11, 2005.
See Bebri, 545 F.3d at 50 n.1.
In this case, all parties acknowledge that the operative
application for asylum was filed prior to May 11, 2005. Thus, the
earlier, more alien-friendly "heart of the matter" rule applies.
See id. Apparently cognizant of this chronology, the IJ and the
BIA both disclaimed reliance on the new credibility standard limned
in the REAL ID Act.
The petitioner nonetheless asserts that this disclaimer
comprised nothing more than empty words and that the agency relied
sub silentio on the REAL ID Act's credibility standard. In his
view, this reliance can be inferred from the way in which the
agency used lies concerning subsidiary matters as a basis for
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finding a lack of veracity. That approach, he says, is consistent
with the REAL ID Act but not with the "heart of the matter" rule.
This is magical thinking. Under the "heart of the
matter" rule, an adverse credibility determination can be based on
a wide range of discrepancies or inconsistencies as long as those
discrepancies or inconsistencies go to the heart of the alien's
claim. See Qin v. Ashcroft, 360 F.3d 302, 307-08 (1st Cir. 2004)
(explaining that false testimony concerning matters central to an
asylum claim may call into question a petitioner's overall
credibility). Moreover, it is well accepted that discrepancies and
inconsistencies go to the heart of the matter whenever they
"pertain to facts central to the merits of the alien's claims, not
merely to peripheral or trivial matters." Zheng v. Gonzales, 464
F.3d 60, 63 (1st Cir. 2006).
Those are exactly the types of discrepancies and
inconsistencies that the IJ noted here. For example, the IJ found
that the petitioner's pseudonymous Canadian asylum application cast
his true identity into doubt — and there can be no question but
that an alien's identity lies at the heart of an asylum claim. See
8 U.S.C. § 1158(d)(5)(A)(i); Khan v. Mukasey, 541 F.3d 55, 58 (1st
Cir. 2008). Other discrepancies noted by the IJ related to the
presence or absence of persecution and the existence or
nonexistence of protected grounds — subjects that likewise go to
the heart of the petitioner's asylum claim. We therefore reject as
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unfounded the petitioner's plaint that the agency reached its
adverse credibility determination through the use of an incorrect
legal standard. In identifying which credibility standard
pertained, the IJ and the BIA said what they meant and meant what
they said.
The petitioner rejoins that even if the agency applied
the correct credibility standard, the adverse credibility
determination cannot stand. As we explain below, this asseveration
is hopeless.
Judicial review of an adverse credibility determination
in an immigration case brings to bear the familiar substantial
evidence rubric. See Dhima v. Gonzales, 416 F.3d 92, 95 (1st Cir.
2005). Under that rubric, a court must uphold the agency's
decision as long as it is "supported by reasonable, substantial,
and probative evidence." Khan, 541 F.3d at 57 (internal quotation
marks omitted). Consequently, a challenged decision must stand
unless, viewing the record as a whole, "any reasonable adjudicator
would be compelled to conclude to the contrary." 8 U.S.C.
§ 1252(b)(4)(B); see Khan, 541 F.3d at 57. Tailoring this rubric
to fit the contours of adverse credibility determinations, a
reviewing court should leave such a determination intact as long as
the agency provides specific and cogent reasons for it. See Syed
v. Ashcroft, 389 F.3d 248, 252 (1st Cir. 2004).
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Here, the adverse credibility determination is amply
supported. A few examples suffice to illustrate this point.
C The petitioner's Canadian asylum application used
a fake name, articulated an inconsistent account
of past persecution, and claimed imprisonment by
the USC during a period of time in which the
petitioner was actually living in Massachusetts.
C The petitioner apocryphally claimed that he had
spent three years living in a Kenyan refugee
camp.
C In a 1990 filing, the petitioner asserted that
his first cousin was a leader of the SSDF and
that his father was involved with the same group.
These supposed connections mysteriously vanished
in the four affidavits that he filed between 2005
and 2011.
C In contradictory affidavits and conflicting oral
testimony, the petitioner gave vacillating
accounts of the length of his supposed
imprisonment by the Siad Barre regime.
Despite this imposing array of untruths, half-truths, and
omissions, the petitioner demurs. He employs empirical studies in
an effort to explain away the manifold contradictions and
inconsistencies that populate the record. But abstract empiricism
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is not the measure of judicial review. The agency need only
articulate specific and cogent reasons in support of an adverse
credibility determination. See id. The agency did so here.
Relatedly, the petitioner argues that the IJ and the BIA
erred in faulting him for the absence of corroborating evidence.
But the challenged statements must be taken in context. An adverse
credibility determination, in and of itself, does not necessarily
defeat an asylum application. See Vallejo Piedrahita v. Mukasey,
524 F.3d 142, 145 (1st Cir. 2008). Such a determination dooms the
application, however, if the alien's case for asylum rests
exclusively on his testimony. See id.; see also Olujoke v.
Gonzales, 411 F.3d 16, 22 (1st Cir. 2005) (explaining that when an
asylum-seeker's case relies on the truthfulness of his testimony
without corroborative evidence, a fully supported adverse
credibility determination warrants denial of asylum). The converse
of this proposition is that the presence of corroboration may save
an asylum application notwithstanding the alien's apparent lack of
credibility. See Diab v. Ashcroft, 397 F.3d 35, 40 (1st Cir.
2005).
With this in mind, it is evident that the IJ and the BIA
acted appropriately in noting the absence of corroboration here.
This gap in the record was part and parcel of their explanation as
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to why the petitioner's flawed credibility was fatal to his asylum
application.1
The petitioner makes one final point with respect to
asylum, claiming that — given the present situation in Somalia — he
is entitled to asylum based on a well-founded fear of future
persecution. This claim is premised on the petitioner's assertion
that he is a Sufi Muslim and faces religious persecution at the
hands of al-Shabaab. Both the IJ and the BIA found this assertion
to be dependent upon the petitioner's incredible testimony and,
thus, inadequately supported. We discern no error and, thus,
uphold the denial of asylum.2
We turn next to the petitioner's challenge to the denial
of his motion to amend. According to the petitioner, the IJ should
have allowed him to rescind his concession that, when removal
proceedings were commenced, he was present in the United States
1
The petitioner suggests that if his own testimony was
insufficient, the IJ should have requested corroborative testimony.
But the burden of proof rested with the petitioner, see Vallejo
Piedrahita, 524 F.3d at 144, and the IJ is not bound to alert the
petitioner, mid-trial, to his failure to carry that burden, see
Zeru v. Gonzales, 503 F.3d 59, 74 n.6 (1st Cir. 2007).
2
In this court, the petitioner has not advanced any developed
argumentation anent his claims for withholding of removal and CAT
protection. These claims are, therefore, waived. See Ahmed v.
Holder, 611 F.3d 90, 98 (1st Cir. 2010); United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990). In all events, the claims are
premised on the same testimony that the IJ and the BIA supportably
found to be unworthy of credence. Thus, the claims would fail even
if they had been preserved. See Uruci v. Holder, 558 F.3d 14, 18
(1st Cir. 2009); Khan, 541 F.3d at 58.
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without having been admitted or paroled after inspection.
Rescinding that concession would have cleared the way for him to
file for an adjustment in status — an adjustment that he now wishes
to pursue. See 8 U.S.C. § 1255(a).
Both sides agree that our review of the denial of the
leave to amend is for abuse of discretion. In 2007, the petitioner
sought leave to amend his 2003 pleadings in which he had made the
admission concerning his status. The IJ denied that request,
concluding that the petitioner had failed to show good cause why
amendment of the pleadings should be allowed after four years. The
BIA affirmed.
The petitioner makes much of the fact that his status
concession was made through his former counsel. As a general rule,
parties are bound by the tactical decisions of their lawyers. See
Lima v. Holder, ___ F.3d ___, ___ (1st Cir. 2014) [No. 13-1583,
slip op. at 12-13]; Leblanc v. INS, 715 F.2d 685, 694 (1st Cir.
1983). If counsel concedes a point on his client's behalf, the
client is bound by the concession unless he can demonstrate that
his lawyer's conduct in making the concession was particularly
egregious. See Lima, ___ F.3d at ___ [slip op. at 13]; Leblanc,
715 F.2d at 694.
In an effort to carry this weighty burden, the petitioner
first suggests that his concession should be excused because until
2010 the law was unclear as to the meaning of the term "admitted."
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See Matter of Quilantan, 25 I. & N. Dec. 285, 293 (B.I.A. 2010).
But this suggestion is a non sequitur: the petitioner made the
concession through counsel in 2003, and sought to retract it in
2007. The law was unchanged during that period, and it is self-
evident that any light that Quilantan may have shed did not serve
as the impetus for the petitioner's motion to amend. And even if
the IJ had had the benefit of Quilantan's clarification of Matter
of Areguillin, 17 I. & N. Dec. 308 (B.I.A. 1980), it would not have
availed the petitioner.
The petitioner's fallback position is equally unavailing.
He vaguely contends that the record confirms that he was inspected
when entering the United States upon his return from Canada and
that, therefore, it was inequitable to deny him leave to amend.
But the petitioner reads the record through rose-colored glasses.
As the BIA supportably found, the 1997 Border Patrol memorandum
upon which the petitioner principally relies simply does not
address whether he was inspected and admitted when he returned from
Canada.
The short of it is that the petitioner has wholly failed
to identify either any extenuating circumstances or any good cause
for his four-year delay in seeking to amend his pleadings. It
follows inexorably that the IJ did not abuse his discretion in
denying leave to amend.
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The petitioner's final claim of error posits that the BIA
blundered in evaluating the fairness of the hearing that he
received. To put this claim in perspective, some further
background is essential.
In April of 2012, the petitioner and his lawyer were
reviewing the case file at the immigration court. They discovered
a note from the IJ to his law clerk, written after the close of all
the evidence but while the case was pending final argument, which
requested a draft opinion denying the petitioner's claims based on
lack of credibility. The petitioner maintains that this note, at
a minimum, creates an appearance of judicial bias sufficient to
work a violation of due process.
We review the BIA's denial of this claim de novo. See
Laurent v. Ashcroft, 359 F.3d 59, 62 (1st Cir. 2004). In our
judgment, the BIA did not err in rejecting it.
When asserting a claim of judicial bias, an alien has the
"substantial burden" of proving that the IJ showed a "deep-seated
favoritism or antagonism that would make fair judgment impossible."
Yosd v. Mukasey, 514 F.3d 74, 78 (1st Cir. 2008) (internal
quotation marks omitted); see Liteky v. United States, 510 U.S.
540, 555 (1994). The petitioner has not even addressed this
stringent standard, let alone satisfied it.
We need go no further. For the reasons elucidated above,
the petition for judicial review is denied.
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