Ahmed v. Holder

2014 | Cited 0 times | First Circuit | September 2, 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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