Ahmed v. Atty Gen USA , 106 F. App'x 111 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
7-20-2004
Ahmed v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-3637
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 02-3637
MOHAMAD SELIM AHMED,
Petitioner
v.
JOHN ASHCROFT
ATTORNEY GENERAL OF THE UNITED STATES
On Petition for Review of an Order of Removal from
the Board of Immigration Appeals
U.S. Department of Justice
Executive Office for Immigration Review
(BIA No. A70-048-892)
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 6, 2003
Before: McKEE and SMITH, Circuit Judges,
and GREENBERG, Senior Circuit Judge.
Filed ( July 20, 2004 )
OPINION
McKee, Circuit Judge.
Mohamad Selim Ahmed petitions for review of the Board of Immigration
Appeals’ order affirming the Immigration Judge’s order of removal. For the reasons that
follow, we will affirm.
I.
Because we write only for the parties, we need not reiterate the facts except insofar
as may be helpful to our brief discussion.
Ahmed is a native and citizen of Syria. He entered the United States on June 12,
1988 as a nonimmigrant with authorization to remain until August 2 of the same year.
A.R. 227. Sometime in 1989, he filed an application for asylum with the Immigration and
Naturalization Service1 in Newark, New Jersey. A.R. 143-44.2 On October 11, 1990, he
filed a second application for asylum in Los Angeles, California and was interviewed by
an asylum officer the same day. A.R. 211-15. However, no decision was reached at that
time. On August 26, 1998, almost eight years later, the INS conducted a second asylum
interview, and determined that Ahmed was ineligible for relief. A.R. 186-87. Shortly
thereafter, the INS initiated removal proceedings against Ahmed for overstaying his visa
in violation of 8 U.S.C. § 1227 (a)(1)(B). A.R. 227.
Ahmed conceded removability before the immigration court, but applied for
asylum and withholding of removal or, in the alternative, voluntary departure. A.R. 59-
60. As part of his asylum application, he submitted a declaration describing two incidents
1
Effective March 1, 2003, the INS ceased to exist, and its interior enforcement
functions were transferred to the Department of Homeland Security, Bureau of
Immigration and Customs Enforcement. See Homeland Security Act, 116 Stat. 2135 Pub.
L. 107-296 § 441 (2002).
2
This application was not presented below (A.R. 41-42), and is not part of the
record before us.
2
of “abuse and mistreatment on account of [his] political views.” A.R. 195. First, Ahmed
stated that in 1979, he was “beaten and abused for voting in opposition to President Assad
in a national election.” Id. Second, he claimed that, in 1983, he was detained and beaten
for twenty-five days because he wrote a paper expressing his disapproval of the Syrian
government’s economic policies. Ahmed stated that he was eventually released on the
condition that he become a government informant and never tell anyone about his
detention. A.R. 196-97. Neither incident was mentioned in his 1990 application or
during his immigration interviews.
On January 14, 1999, the IJ set a hearing date of April 27 and stated that he would
not consider “anything” submitted less than 10 days prior to the hearing. A.R. 63. At the
hearing, Ahmed’s counsel requested, for the first time, that his psychiatrist, Dr. Delston,
be allowed to testify on his client’s behalf and that his written report be submitted into
evidence. A.R. 67-68. The IJ refused both requests. A.R. 72. Thereafter, Ahmed
testified on his own behalf and described the 1979 and 1983 incidents.
The IJ ultimately denied Ahmed’s claim, finding that his testimony was not
credible. A.R. 39. Alternatively, the IJ found that, even if Ahmed testified truthfully, he
had not established a well-founded fear of future persecution because the most recent
incident of abuse occurred more than 16 years prior to the hearing. A.R. 42. However,
the IJ did grant Ahmed’s request for voluntary departure. On August 29, 2002, the BIA
issued a per curium order affirming the IJ’s decision without opinion pursuant to 8 C.F.R.
3
§ 1003.1(e)(4), thereby making it the final agency determination. A.R. 2. This appeal
followed.
II.
A. Credibility Determination
The Attorney General has discretion to grant asylum to an alien who qualifies as a
“refugee.” 8 U.S.C. § 1158(b). The Immigration and Nationalization Act defines
“refugee” as:
any person who is outside any country of such person’s
nationality or, in the case of a person having no nationality, is
outside any country in which such person last habitually
resided, and who is unable or unwilling to return to, and is
unable or unwilling to avail himself or herself of the
protection of, that country because of persecution or a well-
founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or
political opinion.
8 U.S.C. § 1101(a)(42)(A). In order to meet this standard, an alien must possess “a
subjective fear of persecution that is supported by objective evidence that persecution is a
reasonable possibility.” Chang v. INS, 119 F.3d 1055,1166 (3d Cir. 1997). In other
words, “[t]he applicant’s statements . . . must be viewed in the context of the relevant
background situation. ” Matter of Dass, 20 I.& N. Dec. 120, 125 (1989). However, an
alien does not have to show a clear probability of persecution in order to be granted
asylum. As the Supreme Court noted in INS v. Cardoza-Fonseca, 480 U.S. 421, 431
(1987), “[o]ne can certainly have a well-founded fear of an event happening when there is
4
less than a 50% chance of the occurrence taking place.” If an alien establishes that he/she
suffered past persecution, a rebuttable presumption arises that he/she has a well-founded
fear of persecution in the future. 8 C.F.R. § 208.13(b)(1).
In order to withstand appellate review, the agency’s decision must be supported by
“substantial evidence.” Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir. 1998).
“Substantial evidence is more than a scintilla, and must do more than create a suspicion of
the existence of the fact to be established. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion . . . .” N.L.R.B. v.
Columbian Enameling & Stamping Co., 306 U.S. 292, 300 (1939) (citation and internal
quotation marks omitted). In other words, “the administrative findings of fact are
conclusive unless any reasonable adjudicator would be compelled to conclude to the
contrary . . . .” 8 U.S.C. § 1252(b)(4)(B). This standard applies with equal force to
adverse credibility determinations. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002)
(“[A]dverse credibility determinations are reviewed for substantial evidence.”) (citation
omitted).
As stated above, the IJ denied Ahmed’s claim for lack of credibility. His decision
was based primarily on the fact that Ahmed did not mention the 1979 and 1983 incidents
until after his application was denied by the INS. A.R. 39. Moreover, Ahmed not only
failed to mention these incidents in his 1990 asylum application (A.R. 211-215), he also
failed to discuss them in either of his two asylum interviews in 1990 and 1998. During
5
his testimony, Ahmed attempted to explain the latter two omissions. First, he testified
that he did not mention these incidents during the 1990 interview because he did not trust
his cousin, who was acting as his interpreter. A.R. 138-40. Later, he testified that he
chose not to mention these incidents during the 1998 interview because he was not sure
whether he could add any “new” information to his claim at that point. A.R. 142. The IJ
found both explanations implausible. A.R. 41. Finally, the IJ noted that Ahmed’s
“overall demeanor and way of answering questions . . . [was] utterly evasive . . . .” A.R.
42.3
Ahmed’s failure to mention the 1979 and 1983 incidents were not minor
omissions; rather, these allegations go to the very “heart of [his] asylum claim.” Gao,
299 F.3d at 272 (citation and internal quotation marks omitted). Those incidents are, in
fact, the only evidence of persecution offered in support of his claim. Without them,
there is no question that his application would be summarily denied. This case is
therefore distinguishable from Balasubramanrim, 143 F.3d 157, where we held that
courts must be careful not to place too much emphasis on statements made by an alien
during an involuntary interview conducted immediately upon his/her arrival in the United
3
The IJ also mentioned that there were some discrepancies between Ahmed’s 1989
and 1990 asylum applications. A.R. 41-42. However, because Ahmed’s 1989 application
was never introduced into evidence, the IJ was forced to admit that he “[did not] really
know what those differences [were].” Id. Therefore, we will not consider Ahmed’s 1989
application in determining whether there was substantial evidence to support the IJ’s
adverse credibility determination.
6
States. There, we stated that “an arriving alien who has suffered abuse during
interrogation sessions by government officials in his home country may be reluctant to
reveal such information during the first meeting with government officials in this
country.” Id. at 163; see also Senathirajah v. INS, 157 F.3d 210, 218 (3d Cir. 1998)
(“Given Senathirajah’s allegations of torture and detention, he may well have been
reluctant to disclose the breadth of his suffering in Sri Lanka to a government official
upon arriving in the United States . . . .”). Ahmed had been in the United States for more
than 2 years before filing his current asylum application. By the time the INS conducted
its second interview and issued a decision on his application, he had been in the country
for more than 10 years. Ahmed’s application does not, therefore, present the intricacies
that troubled us in Balasubramanrim and Senathirajah. We conclude that the IJ’s
credibility determination is supported by substantial evidence.4
B. Exclusion of Expert Witness’ Testimony and Written Report
Ahmed also argues that his due process rights were violated when the IJ declined
to consider the testimony and written report of his psychiatrist and expert witness, Dr.
Delston. There is no question that an alien facing removal has a right to due process of
law under the Fifth Amendment. Chong v. INS, 264 F.3d 378, 386 (3d Cir. 2001). “The
fundamental requirement of due process is the opportunity to be heard at a meaningful
4
In light of this finding, we need not consider whether the IJ’s alternative rationale
for denying Ahmed’s claim–that he did not have a reasonable fear of future
persecution–was supported by substantial evidence.
7
time and in a meaningful manner.” Id. (citation and internal quotation marks omitted). In
the context of removal proceedings, an alien: (1) is entitled to fact-finding based on the
record before the court; (2) must be given the opportunity to make arguments on his/her
own behalf; and (3) has the right to an individualized determination of his/her claims. Id.
(citation omitted). Id. We review alleged due process violations in removal proceedings
de novo. Id.
An “Immigration Judge may order any party to file a pre-hearing statement of
position that may include, but is not limited to . . . a list of proposed witnesses and what
they will establish.” 8 C.F.R. § 3.21 (now located at 8 C.F.R. § 1003.21). Here, more
than four months prior to the hearing, the IJ indicated that he would not accept
“anything” submitted less than 10 days in advance of the hearing (hereinafter, “the 10-
day rule”). A.R. 63. Nonetheless, at the hearing, Ahmed’s counsel requested, for the
first time, that Dr. Delston be allowed to testify on his client’s behalf and that his written
report be submitted into evidence. The last minute request caught the government by
surprise as counsel for the government was unaware of Dr. Delston’s qualifications and
the nature and scope of his proposed testimony. A.R. 68. This problem was exacerbated
by the fact that Dr. Delston “forgot” to bring his resumé to the hearing. Id. Not
surprisingly, the IJ therefore refused to allow Dr. Delston’s testimony or admit his
written report.
That decision hardly offends notions of due process. Ahmed was clearly given an
8
opportunity to make arguments and submit evidence in support of his case in a
“meaningful time and in a meaningful manner.” Chong, 264 F.3d at 386. He simply
failed to observe the reasonable evidentiary deadline imposed by the IJ. He then failed
to offer a compelling reason why Dr. Delston’s testimony and report should be exempted
from the court’s 10-day rule. At the hearing, counsel sought to justify the late
submission by stating that, due to Dr. Delston’s busy schedule, he only recently had an
opportunity to evaluate Ahmed. A.R. 72. Counsel also indicated that he was unaware
that his client was even evaluated by Dr. Delston until the day before the hearing. A.R.
69, 72.5 These excuses are inadequate for several reasons. First, Ahmed had eight
months to seek an expert psychological evaluation in support of his claim, beginning
August 26, 1998, the date his asylum application was denied by the INS, and ending
April 17, 1999, 10 days prior to the immigration court hearing. Even assuming that this
period was somehow insufficient to schedule an appointment with Dr. Delston – which
we seriously doubt – Ahmed should have found a psychiatrist willing to evaluate him
within the court’s deadline.
Ahmed also fails to explain why he did not bother to inform opposing counsel of
his decision to seek a psychological evaluation.6 There is simply no justification for his
5
This is consistent with Ahmed’s statement at the hearing that he “only called
[counsel] yesterday . . . .” regarding his evaluation by Dr. Delston. A.R. 72.
6
The actual date of Ahmed’s visit to Dr. Delston is not clear from the record.
9
secretiveness, nor is there a judicial remedy. Compare, Balasubramanrim, 143 F.3d 157.
Finally, Ahmed has failed to offer any indication that the IJ’s decision would have been
influenced by Dr. Delston’s testimony or report. Colmenar v. INS, 210 F.3d 967, 971
(2000) (In order to establish a due process violation, “an alien [must] show prejudice,
which means that the outcome of the proceeding may have been affected by the alleged
violation.”). We fail to see how the witness’ testimony would have changed Ahmed’s
credibility. In any event, it is clear that excluding the testimony does not implicate the
Due Process Clause or deny Ahmed any of the constitutional protections he was entitled
to.
III.
Based on the foregoing analysis, we will affirm the BIA’s decision.
10