Ahmat v. Holder , 397 F. App'x 735 ( 2010 )

09-2029-ag
Ahmat v. Holder
BIA
Abrams, IJ
A099 592 056
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 28th day of October, two thousand ten.
5
6 PRESENT:
7
8 DENNIS JACOBS,
9 Chief Judge
10 JON O. NEWMAN,
11 DENNY CHIN,
12 Circuit Judges.
13 _______________________________________
14
15 ADOUM ALHADJI AHMAT,
16 Petitioner,
17
18 v. 09-2029-ag
19 NAC
20 ERIC H. HOLDER, JR., U.S. ATTORNEY
21 GENERAL,
22 Respondent.
23 ______________________________________
24
25 FOR PETITIONER: Pro Se.
1
2 FOR RESPONDENT: Tony West, Assistant Attorney
3 General; Leslie McKay, Assistant
4 Director; Jason Wisecup, Trial
5 Attorney, Office of Immigration
6 Litigation, Washington D.C.
7
8
9 The parties have submitted a joint Stipulation and
10 Order of Settlement and Dismissal that would remand this
11 case to the Board of Immigration Appeals (“BIA”). For the
12 following reasons, the Court declines to enter the
13 stipulation.
14 Petitioner, Adoum Alhadji Ahmat, a native and citizen
15 of Chad, was admitted into the United States in June 2005.
16 In February 2006, following the expiration of his
17 nonimmigrant visa, Ahmat filed an affirmative application
18 for asylum, withholding of removal, and relief under the
19 Convention Against Torture (“CAT”), alleging that he had
20 been detained and beaten by police due to his support for
21 the Movement for Democracy and Justice in Chad (“MJDT”).
22 Because Ahmat filed his application after May 11, 2005, it
23 was governed by the REAL ID Act of 2005, Div. B of Pub. L.
24 No. 109-13, 119 Stat. 302, 303 (2005) (codified at 8 U.S.C.
25 § 1158(b)(1)(B)(iii)). See In re S-B-, 24 I. & N. Dec. 42,
26 45 (B.I.A. 2006).
2
1 In April 2007, an immigration judge (“IJ”) denied
2 Ahmat’s application for relief after finding him not
3 credible. Ahmat appealed to the BIA, which affirmed the
4 IJ’s decision and dismissed the appeal in April 2009.
5 However, the BIA applied the pre-REAL ID Act legal
6 standards, concluding that the discrepancies the IJ
7 identified “are substantial and go to the heart of [Ahmat]’s
8 claim.” See 8 U.S.C. § 1158(b)(1)(B)(iii) (stating that the
9 agency may, considering the totality of the circumstances,
10 base a credibility finding on demeanor, plausibility, and
11 inconsistencies, without regard to whether they go “to the
12 heart of the applicant’s claim.”). Following that decision,
13 Ahmat filed a petition for review in this Court.
14 In February 2010, the government moved to dismiss the
15 petition and remand to the BIA “to allow it to address the
16 impact, if any,” of the REAL ID Act on the credibility
17 determination. We denied the government’s motion without
18 prejudice, directing it to file a brief addressing whether
19 the BIA’s application of the wrong legal standard was
20 harmless error “in light of the greater discretion afforded
21 immigration judges by the REAL ID Act to assess
22 credibility.” Before the government filed its brief, the
3
1 parties submitted a joint stipulation to remand to the BIA
2 for reconsideration under the REAL ID Act.*
3 In the review of an adverse credibility determination
4 “an error does not require remand if the remand would be
5 pointless because it is clear that the agency would adhere
6 to its prior decision in the absence of error.” Xiao Ji
7 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 (2d Cir.
8 2006). In this case, remand would be pointless because the
9 REAL ID Act provides greater, not less, support for the
10 agency’s adverse credibility determination.
11 The IJ’s decision found that Ahmat’s testimony (that he
12 was whipped while in detention) was inconsistent with his
13 asylum application (which did not mention that
14 mistreatment). The BIA found that this inconsistency went
15 to the heart of Ahmat’s claim that he was beaten and
16 detained on account of his involvement in the MJDT. Even
17 prior to the enactment of the REAL ID Act, this finding
*
We granted Ahmat’s attorney’s motion to withdraw as
counsel in October 2009. In its motion to remand, the
government stated that it was filing the motion “in lieu
of a joint stipulation because Petitioner is currently
pro se.” Although the subsequent joint stipulation is
signed by Ahmat’s former attorney, he has not filed a
notice of appearance in this case since the time of his
withdrawal. Absent a new notice of appearance,
Petitioner is assumed to be appearing pro se. See 2d
Cir. Local Rule 12.3(b).
4
1 alone would likely have supported an adverse credibility
2 determination. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d
3 Cir. 2005) (determination supported by inconsistency between
4 applicant’s written statement and hearing testimony
5 regarding whether, during a particular incident on which his
6 claim hinged, rival political party members had ransacked
7 his home in his absence or had abused and threatened him
8 personally).
9 However, the IJ went further, finding that Ahmat “ha[d]
10 little knowledge regarding the MJDT” that he “did not know
11 the history of Chad” that he had no knowledge of the timing
12 and circumstances surrounding the death of Youssouf Togoimi,
13 the former leader of the MJDT, and that background evidence
14 in the record contradicted Ahmat’s testimony that no
15 individuals involved in the overthrow of the government had
16 ever been granted amnesty. The BIA concluded that it was
17 “reasonable for the Immigration Judge to expect [Ahmat] to
18 know something about the political party to which he
19 purported he was a member.”
20 Given these findings, it is clear that the BIA’s
21 application of the wrong standard did not prevent it from
22 considering the “totality of the circumstances.” 8 U.S.C.
23 § 1158(b)(1)(B)(iii). We can therefore predict with
5
1 confidence that, “upon a reconsideration cleansed of errors,
2 the agency would reach the same result.” Diallo v. U.S.
3 Dep’t of Justice, 548 F.3d 232, 235 (2d Cir. 2008).
4 For the foregoing reasons, we decline to enter the
5 parties’ joint stipulation to remand. The government is
6 directed to file a responsive brief within 30 days of the
7 date of this order.
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
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