Soliman-Salama v. Mukasey

261 F. App'x 348
Court of Appeals for the Second Circuit·Decided January 30, 2008·No. No. 03-4344-ag·Published

Opinion

SUMMARY ORDER

Petitioner Yassa Soliman-Salama, a native and citizen of Egypt, seeks review of a January 31, 2003 order of the BIA affirming the November 30, 2001 decision of the Immigration Judge (“U”) Roxanne C. Hladylowicz, denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Yassa Reglant Soliman-Salama, No. A79 083 940 (B.I.A. Jan. 31, 2003), aff'g No. A79 083 940 (Immig. Ct. N.Y. City November 30, 2001). We as[350]*350sume the parties’ familiarity with the underlying facts and procedural history in this case.

When the BIA summarily affirms the decision of the IJ without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), we review the IJ’s decision as the final agency determination, see, e.g., Twum v. INS, 411 F.3d 54, 58 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see, e.g., Tao Jiang v. Gonzales, 500 F.3d 137, 140 (2d Cir.2007). In this case, the IJ’s adverse credibility determination was supported by substantial evidence.

In Jin Chen v. U.S. Dep’t. of Justice, 426 F.3d 104, 114 (2d Cir.2005), we held that “where testimony is ‘spare’ yet specific and detailed enough to support the essential elements of an applicant’s claim, the IJ or the [Government] may fairly wonder whether the testimony is fabricated, and the IJ and counsel for the [Government] may wish to probe for incidental details, seeking to draw out inconsistencies that would support a finding of lack of credibility.” 426 F.3d at 114 (internal quotations and citations omitted). But Jin Chen neither obliges the IJ to extract from the asylum applicant all details about certain incidents that the IJ deems to be critical to the petition for asylum nor does it command the IJ to warn the asylum applicant that his answers may not be specific enough in order to establish the credibility of his proffered account. Instead, Jin Chen merely reminds the IJ that a “spare” record, when viewed on its own, is unlikely to be a record sufficient to support an adverse credibility determination. When confronted with a seemingly unresponsive witness, it is thus the IJ’s responsibility to attempt to “draw out inconsistencies” rather than to simply assume that those inconsistencies must exist on the basis of the asylum seeker’s unwillingness or inability to be more descriptive in his testimony. The IJ clearly drew out inconsistencies in Soliman-Salama’s account as required by Jin Chen sufficient to make an adverse credibility determination.

While there are several instances of inconsistent, or potentially inconsistent, statements by Soliman-Salama in the record, one example is particularly illustrative. A critical aspect of Soliman-Salama’s account is his claim that his incarceration in Ecuador was the result of being framed for theft by a group of six Muslims who resented his religious beliefs. [See Trans, at 130-39] According to Soliman-Salama, this Muslim group stole his passport and then told Ecuadorian authorities that he owed an $850 hotel bill charged to someone named “Mario Asadi.” [Id. at 132-39] This led to an exchange between the IJ and Soliman-Salama, in which the IJ uncovered a fundamental inconsistency in Soliman-Salama’s testimony—namely, if the Ecuadorian authorities truly believed Soliman-Salama to be Mario Asadi, why was he not imprisoned under that name?2 [351]*351This is merely one of many important inconsistencies in the record that lend support for the IJ’s adverse credibility finding.3

Given these inconsistencies clearly established in the record, the IJ was well within her discretion in concluding that the testimony of Soliman-Salama was not credible. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337-38 (2d Cir.2006).

The IJ did, however, make some errors with respect to the adverse credibility determination. For example, in the opinion, the IJ stated that “[t]he statements that the respondent made with respect to his problems in Egypt are to be considered without merit, because the respondent has been deemed not credible, not plausible, and has simply been unable to articulate the nature of these incidences that he claims happened, when they happened, how they happened. There is no specificity whatsoever, and therefore the Court cannot make a positive credibility finding with respect to any difficulties the respondent claims that he had in Egypt.” [Trans., at 63] As we have previously concluded, the IJ was within her discretion to hold that Soliman-Salama’s account was not credible. However, to the extent that the IJ determined Soliman-Salama to be not credible for lack of specificity regarding the assaults he suffered in Egypt, the IJ was in error.

The IJ also may have improperly jumped to conclusions about the validity of some of the evidence submitted on behalf of Soliman-Salama. The IJ observed that none of Soliman-Salama’s documents from Ecuador were officially authenticated, and she described as “suspect” the document from the Supreme Court of Guyaquil stating that Soliman-Salama has no basis for applying for Ecuadorian citizenship, notwithstanding his marriage to an Ecuadorian citizen. [Trans., at 63] This assessment appears to be based on the appearance of the document and the IJ’s own intuition. Id. However, without some specific evidence concerning the practices of Ecuadorian courts, the IJ’s conclusion here is speculative. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 405 (2d Cir.2005).

Despite these apparent errors, “[i]t suffices for us to hold in this case that (1) substantial evidence in the record relied on by the IJ, considered in the aggregate, [352]*352supports the IJ’s finding that petitioner lacked credibility, and (2) disregarding those aspects of the IJ’s reasoning that are tainted by error, we can state with confidence that the same decision would be made were the petition remanded.” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338-39 (2d Cir.2006). For these reasons, we affirm the IJ’s decision to deny Soliman-Salama’s application for asylum on the basis of an adverse credibility finding.

However, Soliman-Salama’s petition should be granted in part and remanded for further proceedings with respect to the IJ’s determination that his asylum application was frivolous.

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Soliman-Salama v. Mukasey, 261 F. App'x 348 (2d Cir. 2008).

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