Carrera Veliz v. Holder

09-2361-ag Carrera Veliz v. Holder BIA Romig, IJ A070 775 595 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 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 Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 3 rd day of May, two thousand ten. 5 6 PRESENT: 7 ROBERT D. SACK, 8 ROBERT A. KATZMANN, 9 GERARD E. LYNCH, 10 Circuit Judges. 11 _______________________________________ 12 13 ORLANDO CARRERA VELIZ, 14 Petitioner, 15 16 v. 09-2361-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _______________________________________ 22 23 FOR PETITIONER: Enrique Peña-Pérez, New York, New 24 York. 25 26 FOR RESPONDENT: Tony West, Assistant Attorney 27 General, Douglas E. Ginsburg, 28 Assistant Director, Paul Fiorino, 29 Trial Attorney, Office of 30 Immigration Litigation, United 31 States Department of Justice, 32 Washington, D.C. 1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED, that the petition for review 4 is DENIED. 5 Orlando Carrera Veliz, a native and citizen of 6 Guatemala, seeks review of a May 11, 2009, order of the BIA, 7 affirming the August 3, 2007, decision of Immigration Judge 8 (“IJ”) Jeffrey L. Romig, which denied his applications for 9 asylum, withholding of removal, and relief under the 10 Convention Against Torture (“CAT”), and cancellation of 11 removal. In re Orlando Carrera Veliz, No. A070 775 595 12 (B.I.A. May 11, 2009), aff’g No. A070 775 595 (Immig. Ct. 13 N.Y. City Aug. 3, 2007). We assume the parties’ familiarity 14 with the underlying facts and procedural history in this 15 case. 16 Under the circumstances of this case, we review the 17 IJ’s decision. See Chun Gao v. Gonzales, 424 F.3d 122, 124 18 (2d Cir. 2005). We review legal issues de novo, Aslam v. 19 Mukasey, 537 F.3d 110, 114 (2d Cir. 2008), and “the agency’s 20 factual findings, including adverse credibility 21 determinations, under the substantial evidence standard, 22 treating them as ‘conclusive unless any reasonable 2 1 adjudicator would be compelled to conclude to the 2 contrary,’” Liang Chen v. U.S. Att’y Gen., 454 F.3d 103, 105 3 (2d Cir. 2006), quoting 8 U.S.C. § 1252(b)(4)(B). 4 I. Due Process 5 Carrera Veliz asserts that his due process rights were 6 violated because his removal proceeding was conducted via 7 video conference. As this Court has explained, “an IJ has 8 statutory authority to conduct entire proceedings via video 9 conference,” as long as the proceedings “still accord with 10 the constitutional requirements for due process under [the 11 Supreme Court’s decision in] Mathews v. Eldridge.” Aslam, 12 537 F.3d at 114 (explaining that under Mathews due process 13 requires that, at a minimum, petitioners are accorded an 14 opportunity to be heard at a meaningful time and in a 15 meaningful manner), citing Mathews v. Eldridge, 424 U.S. 16 319, 333 (1976); see also 8 U.S.C. § 1229a(b)(2)(A)(iii) 17 (stating that removal proceedings may take place through 18 video conference). In Aslam, while noting the risks posed 19 by videoconference hearings, we rejected a petitioner’s 20 claim that he was denied due process when a witness’s 21 testimony was taken by video. Aslam, 537 F.3d at 115. 22 Carrera Veliz did not object to the video conference at 3 1 the time of the proceedings. Indeed, like the petitioner in 2 Aslam, 537 F.3d at 115, Carrera Veliz rejected the IJ’s 3 proposal of a change of venue to permit an in person 4 hearing. Nevertheless, he asserts that he was not accorded 5 a full and fair hearing because the IJ was unable to assess 6 his demeanor in person. However, the IJ did not deny 7 Carrera Veliz’s applications for relief based on his 8 demeanor. Similarly, although Carrera Veliz asserts that 9 the video conference rendered the IJ unable to consider his 10 level of education, he fails to explain how an in-person 11 hearing would have either allowed the IJ to better 12 understand his education level or otherwise remedied any 13 alleged deficiency in the proceeding. 14 Because Carrera Veliz fails to demonstrate that he was 15 not afforded the opportunity to be heard in a meaningful 16 manner, his arguments challenging the constitutionality of 17 his video conference proceedings are meritless. See id. 18 114-15. 19 II. Asylum, Withholding of Removal, and CAT Relief 20 In making his adverse credibility determination, the IJ 21 reasonably relied on Carrera Veliz’s inconsistent testimony 22 regarding how long he stayed in Guatemala following his 4 1 alleged period of detention – Carrera Veliz testified that 2 he stayed for a year or two, but his asylum application 3 materials suggested he had only stayed for a month or two. 4 See Liang Chen, 454 F.3d at 106-07 (2d Cir. 2006). The IJ 5 reasonably found that the discrepancy was significant, and 6 that the attempted explanation that Carrera Veliz was 7 actually referring to time spent in Mexico was unpersuasive, 8 as Carrera Veliz’s Form I-589 stated that he was only “in 9 transit” in Mexico before arriving in the United States, not 10 for one or two years as his testimony suggested. See Majidi 11 v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). 12 Additionally, the IJ found that Carrera Veliz’s 13 “willingness to return to Guatemala in September 1993, 14 albeit to visit his father due to an illness, suggest[ed] 15 that his claimed fear of return to that country was not 16 subjectively genuine.” See Wensheng Yan v. Mukasey, 509 17 F.3d 63, 68 n.2 (2d Cir. 2007). 18 Ultimately, the IJ’s adverse credibility determination 19 was supported by substantial evidence. See Tu Lin v. 20 Gonzales, 446 F.3d 395, 400 (2d Cir. 2006). The agency’s 21 denial of Carrera Veliz’s applications for asylum, 22 withholding of removal, and CAT relief was therefore 23 reasonable, because all three claims rested on the same 5 1 factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156 2 (2d Cir. 2006); see also Xue Hong Yang v. U.S. Dep’t. of 3 Justice, 426 F.3d 520, 523 (2d Cir. 2005). 4 III. Cancellation of Removal 5 8 U.S.C. § 1252(a)(2)(B)(i) provides that this Court 6 does not have jurisdiction to review an agency’s denial of 7 an application for cancellation of removal. However, this 8 court may invoke its jurisdiction to consider a 9 constitutional claim or a question of law. See Xiao Ji Chen 10 v. U.S. Dep’t of Justice, 471 F.3d 315, 329-30 (2d Cir. 11 2006); 8 U.S.C. § 1252(a)(2)(D). 12 Here, Carrera Veliz presents a question of law by 13 arguing that his due process rights were violated because 14 the IJ excluded evidence that he sought to admit during his 15 removal proceeding. See Xiao Ji Chen, 471 F.3d at 329-30. 16 However, as the IJ explained during the hearing, Carrera 17 Veliz was afforded the opportunity to submit evidence until 18 10 days in advance of the hearing, and because he failed to 19 submit the evidence 10 days in advance of the hearing, the 20 IJ reasonably declined to admit it. See 21 8 C.F.R. § 1003.31(c). Thus, the IJ did not err in 22 declining to admit Carrera Veliz’s untimely evidence. In 6 1 any event, as the BIA explained, Carrera Veliz was not 2 prejudiced by the IJ’s refusal to admit updated additional 3 evidence regarding his son’s learning disability into the 4 record, because the IJ specifically considered his son’s 5 disability as an aspect of hardship in his case. 6 Finally, while Carrera Veliz asserts in his brief that 7 the agency erred in characterizing him as an “arrival [sic] 8 alien,” this argument is meritless. The agency properly 9 determined that Carrera Veliz is an “arriving alien” because 10 his parole status has been terminated. See 8 C.F.R. § 11 212.5(e). 12 For the foregoing reasons, the petition for review is 13 DENIED. As we have completed our review, any stay of 14 removal that the Court previously granted in this petition 15 is VACATED, and any pending motion for a stay of removal in 16 this petition is DISMISSED as moot. 17 FOR THE COURT: 18 Catherine O’Hagan Wolfe, Clerk 19 20 7