Ameziane v. Gonzales

202 F. App'x 480
Court of Appeals for the Second Circuit·Decided October 16, 2006·No. No. 05-5867-ag·Published

Opinion

SUMMARY ORDER

Petitioner Hoeine Ameziane, a native and citizen of Algeria, seeks review of a September 80, 2005 order of the Board of Immigration Appeals (“BIA”) summarily affirming the decision of Immigration Judge (“IJ”) George T. Chew denying his application for withholding of removal and relief under the Convention Against Torture (“CAT”). See In re Hocine Ameziane, No. A 97 965 211 (BIA Sept. 30, 2005), aff'g No. A 97 965 211 (Immig. Ct. N.Y. City, N.Y. June 30, 2004). We assume the parties’ familiarity with the facts, the procedural history and the issues presented on appeal.

When the BIA summarily affirms an IJ’s decision, we review the IJ’s decision directly. Shi Liang Lin v. U.S. Dep’t of Justice, 416 F.3d 184, 189 (2d Cir.2005). The factual findings underlying the IJ’s denial of Ameziane’s claims will be upheld if those findings are based upon “substantial evidence.” Diallo v. INS, 232 F.3d 279, 287 (2d Cir.2000).

Ameziane does not seek review of the denial of his asylum claim, which was untimely filed more than six years after entering the United States. See 8 U.S.C. § 1158(a)(1) (imposing a one-year filing deadline). Nor does Ameziane pursue his CAT claim on appeal, as the IJ properly concluded that the record does not support the claim. We, therefore, only review the denial of his withholding claim.

Although the IJ found Ameziane’s explanation for submitting his asylum application after the filing deadline to be “very implausible,” the IJ made no explicit credibility findings in relation to Ameziane’s remaining claims. Instead, the IJ found that one of the events identified by Ameziane as the basis for his claim — the police coming to his house to arrest him in 1997 because of his Berber nationalist activities — was too remote in time and lacked sufficient corroboration to show that it occurred. The IJ further found that the heavier burden necessary for withholding [482] of removal had not been met, and that the petitioner had failed to demonstrate that, more likely than not, he would be tortured if returned to Algeria.

These conclusions were inadequately supported by the IJ. In finding a lack of corroboration to show that the police visit to Ameziane’s home occurred, the IJ failed to make an explicit credibility finding as to Ameziane’s testimony in support of this claim. This failure frustrates appellate review and denies Ameziane the benefit of the rule that “a petition for ... withholding of deportation [can be sustained] based on credible testimony alone.” Diallo v. INS, 232 F.3d at 287. The fact that the IJ found Ameziane’s explanation of why he waited to file his asylum application “very implausible,” even if regarded as a credibility determination, was not relied on by the IJ in denying the withholding claim and so bears no relationship to IJ’s analysis of that claim or his conclusions concerning corroboration. Cf. Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (ruling that the IJ’s reasons for denying a claim “must bear a legitimate nexus to the [credibility] finding”). Specifically, the “very implausible” finding sheds no light on whether the IJ found Ameziane’s testimony as to his withholding claim (1) incredible because of a lack of corroboration, see Diallo, 232 F.3d at 287 (ruling that the presence or absence of corroborative evidence may be properly considered in determining credibility, but cannot be the sole factor taken into account) or (2) credible but requiring additional corroborative evidence to substantiate the claim, see Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 153 (2d Cir.2003). See Diallo, 232 F.3d at 290 (distinguishing between considering the lack of corroborative evidence in assessing credibility and requiring corroborative evidence to satisfy the petitioner’s burden of proof). ’ If the IJ ruled on the latter ground, this reliance triggered a duty on his part to identify the relevant corroborative documentation and show that this documentation was reasonably available to petitioner. See Jin Shui Qiu, 329 F.3d at 153. This confluence of errors leads us to conclude that the IJ’s decision on this issue is not entitled to substantial deference.

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Ameziane v. Gonzales, 202 F. App'x 480 (2d Cir. 2006).

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