Ismail v. Barr

Opinion

18-983 Ismail v. Barr

BIA

Straus, IJ

A206 514 530

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 TO 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 Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 16th day of January, two thousand twenty. 5 6 PRESENT: 7 BARRINGTON D. PARKER, 8 MICHAEL H. PARK, 9 Circuit Judges.1 10 _____________________________________ 11 12 ABDUL F. ISMAIL 13 Petitioner, 14 15 v. 18-983 16 NAC 17 WILLIAM P. BARR, UNITED STATES 18 ATTORNEY GENERAL, 19 Respondent. 20 _____________________________________ 21 22 23 FOR PETITIONER: Megan E. Kludt, Northampton, MA. 24 25

1 Judge Christopher F. Droney, who was originally assigned to the panel, retired from the Court, effective January 1, 2020, prior to the resolution of this case. The remaining two members of the panel, who are in agreement, have determined the matter. See 28 U.S.C. § 46(d); 2d Cir. IOP E(b); United States v. Desimone, 140 F.3d 457, 458–59 (2d Cir. 1998).

1 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 2 General; Jeffery R. Leist, Senior 3 Litigation Counsel; Yedidya Cohen, 4 Trial Attorney, Office of 5 Immigration Litigation, United 6 States Department of Justice, 7 Washington, DC.

8 UPON DUE CONSIDERATION of this petition for review of a 9 Board of Immigration Appeals (“BIA”) decision, it is hereby 10 ORDERED, ADJUDGED, AND DECREED that the petition for review 11 is DENIED in part and DISMISSED in part. 12 Petitioner Abdul F. Ismail, a native and citizen of 13 Ghana, seeks review of a March 29, 2018, decision of the BIA 14 affirming an October 4, 2017, decision of an Immigration Judge 15 (“IJ”) denying Ismail’s application for asylum, withholding 16 of removal, and relief under the Convention Against Torture 17 (“CAT”) and denying his motion to continue his proceedings to 18 await a decision from U.S. Citizenship and Immigration 19 Services (“USCIS”). In re Abdul F. Ismail, No. A 206 514 530 20 (B.I.A. Mar. 29, 2019), aff’g No. A 206 514 530 (Immig. Ct. 21 Hartford Oct. 4, 2017). We assume the parties’ familiarity 22 with the underlying facts and procedural history in this case.

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1 Asylum, Withholding of Removal, and CAT 2 Under the circumstances of this case, we have reviewed 3 both the BIA’s and IJ’s decisions. See Yun-Zui Guan v. 4 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable 5 standards of review are well established. See 8 U.S.C. 6 § 1252(b)(4); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d 7 Cir. 2018); Chuilu Liu v. Holder, 575 F.3d 193, 196 (2d Cir. 8 2009). Ismail claimed that he was targeted in Ghana because 9 he was perceived as gay and that he would be targeted again 10 if he returned. 11 The agency did not err in finding that Ismail failed to 12 meet his burden of proof.

13 The testimony of the applicant may be sufficient to 14 sustain the applicant’s burden without 15 corroboration, but only if the applicant satisfies 16 the trier of fact that the applicant’s testimony is 17 credible, is persuasive, and refers to specific 18 facts sufficient to demonstrate that the applicant 19 is a refugee. In determining whether the applicant 20 has met the applicant’s burden, the trier of fact 21 may weigh the credible testimony along with other 22 evidence of record. Where the trier of fact 23 determines that the applicant should provide 24 evidence that corroborates otherwise credible 25 testimony, such evidence must be provided unless the 26 applicant does not have the evidence and cannot 27 reasonably obtain the evidence. 28 29 8 U.S.C. § 1158(b)(1)(B)(ii); see also Chuilu Liu, 575 F.3d

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1 at 196–98. The IJ need not specify the points of testimony 2 that require corroboration prior to the IJ’s disposition of 3 the claim because “the alien bears the ultimate burden of 4 introducing such evidence without prompting from the IJ.” 5 Chuilu Liu, 575 F.3d at 198. “No court shall reverse a 6 determination made by a trier of fact with respect to the 7 availability of corroborating evidence . . . unless the court 8 finds . . . that a reasonable trier of fact is compelled to 9 conclude that such corroborating evidence is unavailable.” 10 8 U.S.C. § 1252(b)(4). 11 The IJ reasonably required corroboration given that 12 Ismail admitted he lied under oath to immigration officials 13 both during his visa interview in 2011 and to border officials 14 when he came to the United States in 2013. See 8 U.S.C. 15 § 1158(b)(1)(B)(iii) (IJ may rely on falsehoods in any 16 statement “without regard to whether . . . [it] goes to the 17 heart of the applicant’s claim”); id. § 1158(b)(1)(B)(ii) 18 (requiring IJ to weigh testimony and corroborating evidence). 19 Ismail attempted to obtain a visa in 2011 by falsely claiming 20 that he was enrolled in college in Ghana and was part of a 21 student-exchange program. And when he entered the United

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1 States in 2013, he told border officials that he came to the 2 United States by boat when, in fact, he flew from Ghana to 3 Mexico City. The agency was not required to accept Ismail’s 4 explanation that he was scared of having to return to Ghana, 5 because he did not explain why he believed he would be sent 6 back if he told the truth regarding his travel. See Majidi 7 v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner 8 must do more than offer a plausible explanation for . . . 9 inconsistent statements to secure relief; he must demonstrate 10 that a reasonable fact-finder would be compelled to credit 11 his testimony.” (internal quotations omitted)). While making 12 false statements to flee persecution is consistent with the 13 pursuit of asylum, see Rui Ying Lin v. Gonzales, 445 F.3d 14 127, 134 (2d Cir. 2006), the agency did not err in relying on 15 these false statements because Ismail was not fleeing 16 persecution when he lied to obtain a visa years before the 17 events giving rise to his asylum claim and he lied to border 18 officials after he arrived in the United States. 19 Because Ismail’s credibility was in question, the agency 20 properly looked to his corroborating evidence to determine 21 whether he could meet his burden of proof. See 8 U.S.C.

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1 § 1158(b)(1)(B)(ii). Primarily, Ismail produced only copies 2 of documents and stated that his friend who was applying for 3 asylum in New York had the originals, including the original 4 of Ismail’s mother’s affidavit and her death certificate that 5 allegedly proved she died a few years after the 2013 attack 6 as a result of her injuries. The IJ did not err in requiring 7 originals. See Immigration Court Practice Manual, Chapt. 8 3.3(d)(iii) (providing that alien must file photocopies, but 9 must make original documents available at hearings). Nor did 10 the IJ err in finding that Ismail should have presented 11 testimony or a statement his friend who had been at the heart 12 of the events in Ghana. Although Ismail stated that his 13 friend’s lawyer had advised him not to appear as a witness, 14 Ismail did not explain why he had not obtained the originals 15 of the documents or a written statement. See 8 U.S.C. 16 § 1252(b)(4) (stating that a court may not reverse a finding 17 that evidence is available unless a factfinder would be 18 compelled to find it unavailable). 19 Nor did the IJ err in declining to give weight to the 20 photocopies of documents in the record. See Y.C. v. Holder, 21 741 F.3d 324, 332 (2d Cir. 2013) (“We generally defer to the

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1 agency’s evaluation of the weight to be afforded an 2 applicant’s documentary evidence.”). The IJ reasonably found 3 that Ismail’s mother’s death certificate was suspect because 4 it listed the cause of death as “severe hand injury and broken 5 legs due to attack” but Ismail’s mother died four years after 6 the attack. The IJ was not required to credit Ismail’s 7 explanation that his mother died from an infection due to the 8 injuries she sustained because there is nothing in the record 9 to confirm that statement, and other medical documents dated 10 2013 reflect that she had a leg fracture and a broken arm, 11 but “got treated and became fit.” Although “the agency 12 cannot base an adverse credibility determination solely on a 13 speculative finding that the applicant has submitted 14 inauthentic documents in support of his application” if the 15 testimony is “otherwise credible, consistent and compelling,” 16 Niang v. Mukasey, 511 F.3d 138, 141 (2d Cir. 2007), the IJ 17 did not err in declining to credit Ismail’s evidence given 18 the credibility problems and lack of original documents. 19 Because Ismail did not demonstrate credibility or otherwise 20 meet his burden of proof for asylum, he necessarily did not 21 meet his burden for withholding of removal and CAT relief

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1 because all three forms of relief were based on the same 2 factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156- 3 57 (2d Cir. 2006). 4 Motion for a Continuance 5 Ismail challenges the agency’s denial of his motion to 6 continue proceedings to await ruling on adjustment of 7 status by USCIS. After the conclusion of Ismail’s removal 8 proceedings, USCIS denied Ismail’s application. 9 Accordingly, we agree with the government that any 10 challenge to the denial of a continuance is moot. See 11 Qureshi v. Gonzales, 442 F.3d 985, 987-90 (7th Cir. 2006) 12 (“A remand now would effectuate no change in the case 13 [because the] basis for a continuance no longer exists.”); 14 see also Church of Scientology of California v. United 15 States, 506 U.S. 9, 12 (1992) (“[I]f an event occurs while 16 a case is pending on appeal that makes it impossible for 17 the court to grant any effectual relief whatever to a 18 prevailing party, the appeal must be dismissed.” (internal 19 quotation marks omitted)). 20 For the foregoing reasons, the petition for review is 21 DENIED as to asylum, withholding of removal, and CAT relief,

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1 and DISMISSED as moot as to the denial of a continuance. All 2 pending motions and applications are DENIED and stays 3 VACATED.

4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, 6 Clerk of Court