Eroglu v. Holder

10-659-ag
Eroglu v. Holder
BIA
Elstein, IJ
A097 517 078
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 25 th day of January, two thousand eleven.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 JOSEPH M. McLAUGHLIN,
10 ROBERT D. SACK,
11 Circuit Judges.
12 ______________________________________
13
14 ERTUGRUL EROGLU, also known as
15 ERTUGRUL BROGLU,
16 Petitioner,
17
18 v. 10-659-ag
19 NAC
20 ERIC H. HOLDER, JR.,
21 UNITED STATES ATTORNEY GENERAL,
22 Respondent.
23 ______________________________________
24
25 FOR PETITIONER: Andrew P. Johnson, New York, NY.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Susan K. Houser, Senior
29 Litigation Counsel; Linda Y. Cheng,
1 Trial Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a

7 Board of Immigration Appeals (“BIA”) decision, it is hereby

8 ORDERED, ADJUDGED, AND DECREED, that the petition for review

9 is DENIED.

10 Ertugrul Eroglu, a native and citizen of Turkey, seeks

11 review of a January 14, 2010, order of the BIA affirming the

12 May 12, 2008, decision of Immigration Judge (“IJ”) Annette

13 S. Elstein, which denied Eroglu’s application for asylum,

14 withholding of removal, and relief under the Convention

15 Against Torture (“CAT”). In re Ertugrul Eroglu, No. A097

16 517 078 (B.I.A. Jan. 14, 2010), aff’g No. A097 517 078

17 (Immig. Ct. N.Y. City May 12, 2008). We assume the parties’

18 familiarity with the underlying facts and procedural history

19 of this case.

20 Under the circumstances of this case, we review the

21 decision of the IJ as supplemented by the BIA. See Yan Chen

22 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The

23 applicable standards of review are well-established.

24 See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534

25 F.3d 162, 165-67 (2d Cir. 2008).

2
1 Contrary to Eroglu’s position, the agency reasonably

2 relied on Eroglu’s inconsistencies and omissions in arriving

3 at its adverse credibility determination. See Xiu Xia Lin,

4 534 F.3d at 164, 166-67. As the IJ noted, Eroglu testified

5 that he had complained to the police many times about being

6 followed, but he omitted this from his written statement.

7 Eroglu also testified that he had been walking down the

8 street with his cousins when they were attacked by members

9 of the Gurbuz family, but police reports indicated that the

10 two families had arranged to meet to settle a quarrel. In

11 addition, Eroglu testified that he had been chosen by his

12 family to kill a member of the rival family in 1992, but in

13 his asylum application he stated that this decision was made

14 in 2004. In light of these inconsistencies and omissions,

15 the agency’s adverse credibility finding is supported by

16 substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii);

17 Xiu Xia Lin, 534 F.3d at 162 (2d Cir. 2008).

18 Eroglu’s argument that the agency failed to properly

19 consider the evidence and erred in finding that there was

20 insufficient evidence of the existence of the blood feud on

21 which his claim was based is also unavailing. We presume

22 that the agency has taken into account all of the evidence

3
1 before it, "unless the record compellingly suggests

2 otherwise." Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

3 315, 338 (2d Cir. 2006). The weight afforded to the

4 applicant’s evidence lies largely within the discretion of

5 the IJ. Id. at 342. Here, although Eroglu provided police

6 reports to corroborate the existence of the feud, his

7 testimony contradicted some of the information contained in

8 the reports, and Eroglu himself testified that the police

9 reports contained inaccurate information. The IJ therefore

10 reasonably declined to credit these reports.

11 In addition, because Eroglu testified that he was

12 presently in contact with his mother, brother, and other

13 family members, and that it was his mother who informed him

14 of the threats on his life, the IJ reasonably found that

15 corroborating letters from these family members would have

16 been reasonably available to Eroglu and would have helped

17 establish the existence of the blood feud. And even if the

18 existence of such a feud were conclusively established, the

19 IJ reasonably found that Eroglu was not targeted on account

20 of his membership in the social group comprised of the

21 members of his family, but because they chose him to kill a

22 member of the Gurbuz family; therefore, any potential future

4
1 harm which might befall Eroglu would be directed at him as

2 an individual, not on account of a protected ground, as

3 required for an applicant to be eligible for withholding of

4 removal. See 8 U.S.C.A. § 1231(b)(3)(A).

5 Finally, contrary to Eroglu’s contention, the agency

6 did not err in finding that Eroglu failed to establish that

7 he would more likely than not be tortured if returned to

8 Turkey. Because the only evidence that Eroglu was likely to

9 be tortured depended upon his credibility, the adverse

10 credibility determination necessarily precludes success on

11 Eroglu’s claim for CAT relief. See Xue Hong Yang v. U.S.

12 Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005); cf.

13 Ramsameachire v. Ashcroft, 357 F.3d 169, 184-85 (2d Cir.

14 2004) (holding that the agency may not deny a CAT claim

15 solely on the basis of an adverse credibility finding made

16 in the asylum context, where the CAT claim did not turn upon

17 credibility). And even if credible, Eroglu did not

18 demonstrate that he would suffer any mistreatment “by or at

19 the instigation of or with the consent or acquiescence of a

20 public official or other person acting in an official

21 capacity.” See 8 C.F.R. § 1208.18(a)(1). Although members

22 of the Gurbuz family hold political positions in Turkey,

5
1 Eroglu did not testify that he has ever been harmed or

2 threatened by a Gurbuz acting in an official capacity. To

3 the contrary, Eroglu testified that law enforcement

4 officials in his hometown took active measures to arrest and

5 prosecute members of the Gurbuz family for the 1991

6 shooting, protected Eroglu in his hospital room after the

7 shooting, and attempted to act as mediators in the family

8 feud. Therefore, the IJ reasonably concluded that Eroglu

9 failed to meet his burden with regard to his CAT claim.

10 For the foregoing reasons, the petition for review is

11 DENIED. As we have completed our review, any stay of

12 removal that the Court previously granted in this petition

13 is VACATED, and any pending motion for a stay of removal in

14 this petition is DISMISSED as moot. Any pending request for

15 oral argument in this petition is DENIED in accordance with

16 Federal Rule of Appellate Procedure 34(a)(2), and Second

17 Circuit Local Rule 34.1(b).

18
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
22

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