Belortaja v. Ashcroft

• Court: Court of Appeals for the Second Circuit
• Decided: April 27, 2007
• Docket: 04-4665
• Status: Published

Opinion

04-4665 Belortaja v. Ashcroft

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2006

(Argued: April 12, 2007 Decided: April 27, 2007)

Docket No. 04-4665-ag

JULIAN BELORTAJA ,

Petitioner,

v.

ALBERTO R. GONZALES,1 Attorney General,

Respondent.

Before: WINTER, CABRANES, and HALL, Circuit Judges.

Petitioner seeks review of a decision of the Board of Immigration Appeals (“BIA”) denying his

applications for asylum, withholding of removal, and relief under the Convention Against Torture. We

conclude that the BIA’s adverse credibility determination (1) was not outside the scope of a prior

stipulation and order directing remand, (2) did not violate applicable regulations, (3) did not deprive

petitioner of his Fifth Amendment right to due process, and (4) was supported by substantial evidence.

Petition for review denied.

GLENN T. TERK , Wethersfield, CT, for Petitioner.

MICHAEL C. JAMES, Assistant United States Attorney (Michael J. Garcia, United States Attorney; Michael R. Holden, Assistant United States Attorney; and Ramon E. Reyes, Jr., Assistant United States Attorney, on the brief), United States Attorney’s Office for the Southern District of New York, New York, NY, for Respondent.

1 Pursuant to F ederal Rule of A ppellate P rocedure 43(c)(2), Attorney G eneral Alberto R. Gonzales is automatically substituted for former Attorney General John Ashcroft as respondent in this case.

1 JOSÉ A. CABRANES, Circuit Judge:

Petitioner Julian Belortaja, a native and citizen of Albania, seeks review of a decision of the

Board of Immigration Appeals (“BIA”) made after a stipulated remand from this Court. The BIA

affirmed a decision by Immigration Judge (“IJ”) Michael W. Strauss denying petitioner’s applications

for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”), and

ordering him removed to Albania. In re Belortaja, No. A 77 750 000 (B.I.A. Aug. 5, 2004), aff’g No. A. 77

750 000 (Immig. Ct. Hartford Dec. 6, 2001). Petitioner argues, inter alia, (1) that the BIA’s adverse

credibility determination was improper because the IJ’s decision (which had been adopted by the

earlier, vacated decision of the BIA) did not contain an explicit credibility determination, and (2) that

the BIA’s adverse credibility determination is, in any event, not supported by substantial evidence. We

reject both of these arguments. 2

BACKGROUND

We recount here only those elements of the factual and procedural background necessary to

resolve the instant petition.

Petitioner attempted to enter the United States illegally in August 2000 and was issued a Notice

to Appear in removal proceedings in September 2000. He conceded removability, and, in July 2001, he

filed an application for asylum, withholding of removal, and CAT relief. In his application, petitioner

alleged that his family had been “politically persecuted by the Communist dictatorship” in Albania and

that, more recently, he and his father had been persecuted by the Socialist Party, and by “new

Communists,” because of their support for the Legality Movement Party (“LMP”), “a party that [seeks]

the restoration of a Democratic Constitu[tion]al Monarchy.”

2 Because we deny the petition for review on the basis of the BIA’s adverse credibility determination, we do not address the BIA’s alternative ruling that, even if petitioner were credible and could establish past persecution on political grou nds, fundam ental changes of cond itions in Albania would overcome a presu mption that petitioner had a well- founded fear of future persecution.

2 Following a hearing on December 6, 2001, at which petitioner testified, the IJ denied

petitioner’s application. In his oral decision, the IJ noted two discrepancies between petitioner’s asylum

application and his hearing testimony. First, petitioner testified at the hearing that, in April 1999, a

friend and “well-known activist” in the LMP was shot and killed while sitting with petitioner in a

restaurant. Petitioner stated that he believes “Communists” were responsible for the shooting, and that

this incident was one of the reasons why later in 1999 he fled to Greece for about a year. Yet, as the IJ

noted, petitioner’s asylum application did not mention the shooting.

Second, petitioner testified that after his return to Albania from Greece, he attended a rally

organized by the Democratic Party, an ally of the LMP. After the rally, several individuals stopped him

on the street, forced him into a car, held a gun to his head, and beat him while threatening to kill him

for participating in such rallies. The individuals in the car then hit him “with a hard object” on the

head, knocking him unconscious. He woke up on the ground, and a passerby drove him home.

Petitioner also testified that he believes “Communists” were responsible for this attack. Although

petitioner’s asylum application mentioned the beating and threats on this occasion, it did not indicate

that he had been knocked unconscious.

These two omissions in his asylum application—the shooting of his friend and being knocked

unconscious—led the IJ to “find[] that while [petitioner] may have been a member of the [LMP], his

experiences appear to be embellished.” The IJ, however, did not explicitly find that petitioner’s

testimony was incredible because of the omissions. The IJ then discussed a variety of reasons, in

addition to the embellishment, why petitioner could not establish past persecution, a well-founded fear

of future persecution, or that it was more likely than not that he would be tortured if returned to

Albania. These reasons included petitioner’s failure to provide evidence of “a widespread practice” of

harassment against opponents of the Socialist Party and the fact that petitioner had “good reasons to

come to the United States” other than political persecution.

3 Petitioner appealed the IJ’s decision to the BIA on December 19, 2001. In a decision dated

May 2, 2002, the BIA adopted and affirmed the IJ’s December 6, 2001 decision. The BIA noted that

“[w]hile the [IJ] appears to have doubted the overall plausibility of large portions of [petitioner’s]

asylum claim, he did not make an explicit credibility finding in his decision.” Nevertheless, the BIA

determined that, even assuming petitioner were credible, he could not prevail for the reasons stated by

the IJ.

Petitioner then sought review of the BIA’s May 2, 2002 decision in this Court. While the

petition for review was pending, petitioner and the Government entered into a Stipulation and Order

of Settlement and Dismissal, which was filed on December 19, 2003. Pursuant to the stipulation and

order, the May 2, 2002 decision was vacated and proceedings were remanded to the BIA for

“reconsider[ation] of [petitioner’s] appeal in light of Qui v. Ashcroft, 329 F.3d 140 (2d Cir. 2003), and

Secaida-Rosales v. INS, 331 F.3d 297 (2d Cir. 2003),” two decisions of this Court rendered after the BIA

issued its decision in petitioner’s case.

Upon remand, the BIA issued an independent decision on August 5, 2004—again denying

petitioner’s appeal. Based on the two omissions in petitioner’s asylum application discussed above, the

BIA determined that petitioner was not credible. The BIA, citing to Secaida-Rosales, stated that “the

aforementioned omissions . . . [are] central to [petitioner’s] asylum claim and significant enough to

support an adverse credibility finding.” Alternatively, the BIA concluded that fundamental changes had

occurred in Albania so that petitioner would no longer have a well-founded fear of persecution even if

he were credible. The BIA’s August 5, 2004 decision did not expressly adopt any portion of the IJ’s

December 6, 2001 decision.

DISCUSSION

“When the BIA issues its own independent decision and does not adopt the IJ’s decision, this

Court reviews the decision of the BIA alone.” Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159

4 (2d Cir. 2005). We review an adverse credibility determination by the BIA under the substantial

evidence standard, treating it as “conclusive unless any reasonable adjudicator would be compelled to

conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see Cheng Tong Wang v. Gonzales, 449 F.3d 451, 453

(2d Cir. 2006). We also look to see whether the BIA “has provided ‘specific, cogent’ reasons for the

adverse credibility finding and whether those reasons bear a ‘legitimate nexus’ to the finding.” Zhou

Yun Zhang v. INS, 386 F.3d 66, 74 (2d Cir. 2004) (quoting Secaida-Rosales, 331 F.3d at 307). However,

before we turn to the question of whether the adverse credibility determination in the BIA’s August 5,

2004 decision is supported by substantial evidence and based on permissible reasons, we must first

consider petitioner’s contention that, given the procedural posture of this case, the BIA did not have

the authority to make such a determination.

I. The BIA’s Authority on Remand

We conclude that the BIA’s adverse credibility determination—which it based on the record

developed by the IJ—was not prohibited by (1) the terms of the stipulated remand, (2) the regulatory

scheme governing the BIA’s determination upon remand, or (3) due process considerations.

The December 19, 2003 stipulation between petitioner and the Government vacating the BIA’s

May 2, 2002 decision did not specify any limits on the BIA’s authority to make an adverse credibility

determination on remand; nor did it suggest, much less direct, that if the BIA thought such a

determination appropriate, it first had to order a further remand to the IJ for a new hearing. Rather,

the stipulation simply noted the absence of an explicit credibility determination in the IJ’s decision and

directed the BIA to reconsider petitioner’s case in light of Qui and Secaida-Rosales. This language neither

explicitly nor implicitly precluded the BIA from deciding petitioner’s appeal on any grounds permitted

by law, so long as the BIA properly considered the two recent cases; it certainly did not reach any

conclusion regarding the propriety of an adverse credibility determination by the BIA. Cf. Biggins v.

Hazen Paper Co., 111 F.3d 205, 209 (1st Cir. 1997) (“On remand, courts are often confronted with issues

5 that were never considered by the remanding court. And although the mandate of an appellate court

forecloses the lower court from reconsidering matters determined in the appellate court, it leaves to the

[lower] court any issue not expressly or impliedly disposed of on appeal.” (alteration in original)

(internal quotation marks omitted)). Indeed, because Secaida-Rosales was concerned primarily with the

validity of an adverse credibility determination, see 331 F.3d at 301, 308-12, it would make little sense to

read the stipulation directing consideration of Secaida-Rosales as foreclosing the possibility of an adverse

credibility determination on remand.

We also conclude that the BIA, in making an adverse credibility determination on remand, did

not violate regulations governing its authority to review decisions made by the IJ. Under these

regulations, the BIA was authorized to review all aspects of the IJ’s decision—including the IJ’s factual

determinations—de novo on remand. See Board of Immigration Appeals: Procedural Reforms to

Improve Case Management, 67 Fed. Reg. 54,878, 54,889 (Aug. 26, 2002) [hereinafter “BIA Procedural

Reforms”] (noting the BIA’s “present authority to conduct de novo review of the facts”).3 Under the de

novo standard of review, the BIA was free to reach a factual conclusion different than that reached by

the IJ on the basis of the existing record, including a different conclusion concerning the credibility of

the petitioner. See Fen Yong Chen v. Bureau of Citizenship & Immigration Servs., 470 F.3d 509, 514 (2d Cir.

2006) (“The BIA’s substitution of its judgment for the IJ’s is classic de novo review . . . .”); id. at 515

(concluding that BIA’s decision to “independently assess [petitioner’s] credibility without giving

deference to the findings of the IJ . . . is de novo review”); cf. Muller v. First Unum Life Ins. Co., 341 F.3d

119, 124 (2d Cir. 2003) (noting, in the Employee Retirement Income Security Act (“ERISA”) context,

that a district court given power to conduct de novo review of the facts was authorized to “act[ ] as the

3 A regulation that took effect on September 25, 2002, mandated that the BIA could review “[f]acts determined by the [IJ], including findings as to the cred ibility of testim ony . . . only to dete rmine w hether the find ings . . . are clearly erroneous,” see BIA Proced ural Reform s, 67 F ed. Reg. at 54 ,902 (cod ified at 8 C .F.R. § 100 3.1(d )(3)(i)), bu t this regu lation did not apply to appeals— including petitioner’s— that w ere filed befo re September 25, 2002, see id. at 54,905 (cod ified at 8 C .F.R. § 100 3.3(f)).

6 finder of fact”); Connors v. Conn. Gen. Life Ins. Co., 272 F.3d 127, 136 (2d Cir. 2001) (holding, in the

ERISA context, that a district court conducting de novo review of the administrative record was “not

required to accept . . . as credible” complaints made by a plan participant). It is of no import that the IJ

did not make an explicit credibility determination in its initial decision, so long as the IJ elicited and

assessed the facts later reevaluated by the BIA. See Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289,

296 (2d Cir. 2006) (holding that, where the BIA, after remand, upheld an IJ’s adverse credibility

determination based on an “inconsistency not mentioned in the IJ’s most recent decision,” the BIA did

not engage in improper factfinding because the factual grounds for the determination were “already in

the record”).

We conclude further that another BIA regulation, 8 C.F.R. § 1003.1(d)(3)(iv), restricted the

BIA’s ability to add new evidence to the record, but did not prohibit the BIA from making a factual

determination—including an adverse credibility determination—upon de novo review of the record

before it. This regulation became effective on September 25, 2002, and thus did apply to petitioner’s

appeal. See BIA Procedural Reforms, 67 Fed. Reg. at 54,905 (codified at 8 C.F.R. § 1003.3(f)). It states,

in relevant part, that “[e]xcept for taking administrative notice of commonly known facts such as

current events or the contents of official documents, the [BIA] will not engage in factfinding in the

course of deciding appeals. . . . If further factfinding is needed in a particular case, the [BIA] may

remand the proceeding to the IJ . . . .” 8 C.F.R. § 1003.1(d)(3)(iv). Comments accompanying the

adoption of this regulation make clear that the regulation was intended to restrict the “introduction and

consideration of new evidence in proceedings before the [BIA],” BIA Procedural Reforms, 67 Fed.

Reg. at 54,891, not the reevaluation of evidence obtained by the IJ previously, see id. at 54,892 (noting

that the rule “codifies existing [BIA] precedent holding that new facts will not be considered on

appeal”).

The BIA’s adverse credibility determination in this case is properly characterized as a factual

7 determination made upon de novo review of the existing record, not as an instance of independent

factfinding. It is thus permissible under the regulations. The IJ, after considering the omissions later

relied upon by the BIA in its adverse credibility determination, found that petitioner’s testimony had

been embellished. In its August 5, 2004 decision, the BIA, rather than assuming credibility as it had in

its vacated May 2, 2002 decision, looked again at the omissions first described by the IJ. The BIA

found that the omissions were indicia not just of embellishment, as the IJ had, but of a lack of

credibility. The BIA considered no new evidence in reaching the conclusion that petitioner was not

credible. Accordingly, the BIA’s adverse credibility determination was authorized by the applicable de

novo standard of review, and was not prohibited by 8 C.F.R. § 1003.1(d)(3)(iv).

Finally, we reject petitioner’s claim that his Fifth Amendment right to due process was violated

because he “had no notice that his credibility was in question” and “had no opportunity to explain the

omissions referred to by the BIA.” Pet’r Br. 35. The record squarely contradicts these assertions. The

IJ specifically questioned petitioner about the two omissions at his hearing.4 Moreover, even though

the BIA’s May 2, 2002 decision eventually concluded that the IJ had not explicitly ruled on petitioner’s

credibility, petitioner’s initial brief to the BIA contained over six pages devoted to explaining why the IJ

“erred in his adverse credibility determination.” J.A. 201-207. In discussing whether the BIA should

defer to this “adverse credibility finding,” petitioner stated that “[i]n this case, the [IJ] was concerned

with the asylum application submitted by [petitioner]”; in particular, the IJ “was concerned with what

he perceived to be a lack of corroborating evidence to support [petitioner’s] claims, and the failure of

[petitioner] to include in his application the incidents in which he was assaulted and his friend was murdered.” Id. at

202 (emphasis added). Even in his supplemental brief to the BIA following remand, petitioner noted

4 When asked why his asylum application did not mention the incident where his friend and fellow LPM activist had been murdered while sitting at the same table in a restaurant, petitioner responded that the attack “was not aim ed for” him . When asked why his asylum application did not mention that he had been hit in the head and knocked unconscious after being abducted and beaten, petitioner responded, “I put that in uh, my asylum application that I got beaten by those pe ople and I got the do ctor report that he check, check on me .”

8 that “[i]t is not clear from the [IJ’s] decision whether or not the [IJ] made an explicit determination that

[petitioner’s] testimony lacked credibility,” but he contended that in any event “not all omissions on an

asylum application undermine an applicant’s testimony, and the IJ’s reliance on these omissions to deny

[petitioner’s] claim for asylum is misplaced.” Id. at 6. Given petitioner’s opportunity to explain the

omissions before the IJ, petitioner’s express and repeated understanding in his initial brief to the BIA that

the IJ had made an adverse credibility determination, and petitioner’s argument in his supplemental

brief to the BIA following remand that the omissions could not support a denial of his application,

petitioner’s claim that he lacked notice of a credibility question or an opportunity to explain the

omissions in his asylum application is without merit.

II. The BIA’s Adverse Credibility Finding

Having concluded that it was within the BIA’s authority to make an adverse credibility

determination upon remand, we now turn to whether this determination was supported by substantial

evidence and based on specific, cogent reasons bearing a legitimate nexus to the determination. See

Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 333-35 (2d Cir. 2006). The murder of petitioner’s

friend and fellow LPM activist—which petitioner testified took place in front of him and prompted

him to flee to Greece—is not “incidental or ancillary,” but instead goes “to the heart of his asylum

claim.” Xu Duan Dong v. Ashcroft, 406 F.3d 110, 112 (2d Cir. 2005) (internal quotation marks omitted);

cf. Secaida-Rosales, 331 F.3d at 308-09 (finding that, where a petitioner mentioned in his asylum

application that his uncle had been assassinated, but omitted the fact that he was also shot at, this

omission did not go to the heart of his claim and was not substantial). Given the omission of this

murder in petitioner’s asylum application, coupled with the omission regarding his being knocked

unconscious during the sole incident of violence allegedly directed against him after his return from

9 Greece, we do not think a reasonable factfinder would be compelled to find petitioner credible.5 See

Liang Chen v. U.S. Att’y Gen., 454 F.3d 103, 107 (2d Cir. 2006) (stating that the agency “need not

consider the centrality vel non of each individual discrepancy or omission before using it as the basis for

an adverse credibility determination”).

* * * *

For the foregoing reasons, the petition for review is DENIED.

5 Becau se pe titioner’s CAT claim dep end s on the sam e allegations as his asy lum claim — nam ely, that he would be tortured if returned to A lbania becau se of his affiliation with the L PM — we den y the petition in that respect as well. See Yang v. U.S. D ep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).