Ahmat v. Holder , 413 F. App'x 403 ( 2011 )

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 16th day of March, two thousand eleven.
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 UPON DUE CONSIDERATION of this petition for review of
8 the Board of Immigration Appeals (“BIA”) decision, it is
9 hereby ORDERED, ADJUDGED, and DECREED that the petition for
10 review is DENIED.
11 Petitioner, Adoum Alhadji Ahmat, a native and citizen
12 of Chad, was admitted into the United States in June 2005 as
13 a nonimmigrant student. He ended his schooling (if any) by
14 September 2005, and in February 2006, following the
15 expiration of his nonimmigrant visa, Ahmat filed an
16 affirmative application for asylum, withholding of removal,
17 and relief under the Convention Against Torture (“CAT”). He
18 alleged that he had been detained and beaten by police due
19 to his support for the Movement for Democracy and Justice in
20 Chad (“MJDT”). Because Ahmat filed his application after
21 May 11, 2005, it was governed by the REAL ID Act of 2005,
22 Div. B of Pub. L. No. 109-13, 119 Stat. 302, 303 (2005)
23 (codified at 8 U.S.C. § 1158(b)(1)(B)(iii)). See In re S-B-
24 24 I. & N. Dec. 42, 45 (B.I.A. 2006).
25 In April 2007, an immigration judge (“IJ”) denied
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1 Ahmat’s application for relief after finding him not
2 credible. Ahmat appealed to the BIA, which affirmed the
3 IJ’s decision and dismissed the appeal in April 2009.
4 However, the BIA applied the pre-REAL ID Act legal
5 standards, concluding that the discrepancies the IJ
6 identified “are substantial and go to the heart of [Ahmat]’s
7 claim.” See 8 U.S.C. § 1158(b)(1)(B)(iii) (stating that the
8 agency may, considering the totality of the circumstances,
9 base a credibility finding on demeanor, plausibility, and
10 inconsistencies, without regard to whether they go “to the
11 heart of the applicant’s claim”). Following that decision,
12 Ahmat filed a petition for review in this Court.
13 In February 2010, the government moved to dismiss the
14 petition and remand to the BIA “to allow it to address the
15 impact, if any,” of the REAL ID Act on the credibility
16 determination. We denied the government’s motion without
17 prejudice, directing it to file a brief addressing whether
18 the BIA’s application of the wrong legal standard was
19 harmless error “in light of the greater discretion afforded
20 immigration judges by the REAL ID Act to assess
21 credibility.” Before the government filed its brief, the
22 parties submitted a joint stipulation to remand to the BIA
3
1 for reconsideration under the REAL ID Act.* We declined to
2 remand, and directed the government to file a responsive
3 brief. That brief has been filed.
4 In the review of an adverse credibility determination
5 “an error does not require a remand if the remand would be
6 pointless because it is clear that the agency would adhere
7 to its prior decision in the absence of error.” Xiao Ji
8 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 (2d Cir.
9 2006). In this case, remand would be pointless because the
10 REAL ID Act provides more, not less, support for the
11 agency’s adverse credibility determination.
12 The IJ’s decision found that Ahmat’s testimony (that he
13 was whipped while in detention) was inconsistent with his
14 asylum application (which did not mention that
15 mistreatment). The BIA found that this inconsistency went
16 to the heart of Ahmat’s claim that he was beaten and
17 detained on account of his involvement in the MJDT. Even
*
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 R. 12.3(b).
4
1 prior to the enactment of the REAL ID Act, this finding
2 alone would likely have supported an adverse credibility
3 determination. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d
4 Cir. 2005) (determination supported by inconsistency between
5 applicant’s written statement and oral testimony regarding
6 whether, during a particular incident on which his claim
7 hinged, rival political party members had ransacked his home
8 in his absence or had abused and threatened him personally).
9 Moreover, the IJ found that Ahmat “ha[d] little
10 knowledge regarding the MJDT,” that he “did not know the
11 history of Chad,” that he had no knowledge of the timing and
12 circumstances surrounding the death of Youssouf Togoimi (the
13 former leader of the MJDT), and that background evidence in
14 the record contradicted Ahmat’s testimony that no amnesty
15 had been granted to individuals involved in the overthrow of
16 the government. The BIA concluded that it was “reasonable
17 for the Immigration Judge to expect [Ahmat] to know
18 something about the political party to which he purported he
19 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, the petition for review is
5 DENIED. As we have completed our review, any pending motion
6 for a stay of removal in this petition is DISMISSED as moot.
7 Any pending request for oral argument in this petition is
8 DENIED in accordance with Federal Rule of Appellate
9 Procedure 34(a)(2) and the Second Circuit Local Rule
10 34.1(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
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