Pyie v. Holder

08-6078-ag Pyie v. Holder BIA Hom, IJ A095 869 523 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 26 th day of March, two thousand ten. 5 6 PRESENT: 7 RALPH K. WINTER, 8 JOSÉ A. CABRANES, 9 REENA RAGGI, 10 Circuit Judges. 11 ______________________________________ 12 13 AUNG PYIE, 14 Petitioner, 15 16 v. 08-6078-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, * 20 Respondent. 21 ______________________________________ 22 23 FOR PETITIONER: Aung Pyie, pro se, Forest Hills, New 24 York. 25 26 FOR RESPONDENT: Tony West, Assistant Attorney 27 General, Civil Division; Anh-Thu P. 28 Mai-Windle, Senior Litigation 29 Counsel; Julie M. Iversen, Attorney, 30 Office of Immigration Litigation, 31 United States Department of Justice, 32 Washington, D.C. * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Eric H. Holder, Jr., is automatically substituted for former Attorney General Michael B. Mukasey as respondent in this case. 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 Petitioner, Aung Pyie, a native and citizen of Burma, 6 seeks review of a November 21, 2008 order of the BIA: 7 (1) affirming the October 22, 2004 decision of Immigration 8 Judge (“IJ”) Sandy K. Hom denying petitioner’s application 9 for asylum, withholding of removal, and relief under the 10 Convention Against Torture (“CAT”); and (2) denying 11 petitioner’s motion to remand. In re Pyie, No. A 095 869 12 523 (B.I.A. Nov. 21, 2008), aff’g No. A 095 869 523 (Immig. 13 Ct. N.Y. City Oct. 22, 2004). We assume the parties’ 14 familiarity with the underlying facts and procedural history 15 of the case. 16 As an initial matter, we deny Pyie’s motion to 17 supplement the administrative record. See 8 U.S.C. 18 § 1252(b)(4)(A); Xiao Xing Ni v. Gonzales, 494 F.3d 260 (2d 19 Cir. 2007). 20 I. Application for Relief 21 Under the circumstances of this case, we review the 22 IJ’s decision as modified by the BIA decision, i.e., minus 2 1 the arguments for denying relief that were rejected by the 2 BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 3 520, 522 (2d Cir. 2005). The applicable standards of review 4 are well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin 5 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). 6 Substantial evidence supports the agency’s adverse 7 credibility determination. See Corovic v. Mukasey, 519 F.3d 8 at 90,95 (2d Cir. 2008). As the IJ found, Pyie’s asylum 9 application did not mention that he was “arrested and 10 detained” overnight five or six times subsequent to his 11 initial August 1998 arrest as he testified, only indicating 12 that he was “summoned” to the police station and questioned. 13 The BIA reasonably found that this constituted a material 14 discrepancy concerning his encounters with police because 15 being “summoned” does not encapsulate the concept of being 16 detained for twenty-four hours, regardless of whether Pyie 17 appeared at the police station voluntarily. Cf. Diallo v. 18 INS, 232 F.3d 279, 288 (2d Cir. 2000). Because the 19 discrepancy was dramatic, the agency did not err in relying 20 on it without first soliciting an explanation from Pyie. 21 See Majidi v. Gonzales, 430 F.3d 77, 81 (2d Cir. 2005). 22 Additionally, the IJ reasonably found that Pyie’s 3 1 asylum application failed to mention the alleged torture 2 that occurred during his initial August 1998 detention. 3 When asked what Pyie meant when he said he was tortured, 4 Pyie responded that he was pushed or hit on the back, 5 resulting in his face hitting a desk and the loss of some of 6 his teeth. As the IJ found, Pyie’s asylum application did 7 not mention that incident. Although Pyie asserts that he 8 adequately explained the omission of the incident and his 9 resulting injury, his explanations would not compel a 10 reasonable factfinder to credit them. See Majidi, 430 F.3d 11 at 81. The BIA reasonably found that the omission was 12 material to his claim because it concerned the details of 13 his encounters with police and whether he was subjected to 14 any physical mistreatment. See 8 U.S.C. § 1101(a)(42). 15 Although the BIA did err in conflating some details of 16 the IJ’s inconsistency and omission findings, the BIA 17 reasonably found that Pyie omitted material aspects of his 18 claim from his asylum application – that he was mistreated 19 by police and repeatedly detained. Accordingly, remand is 20 not required because it can be confidently predicted that 21 the agency would again find Pyie not credible. See Xiao Ji 22 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338-39 (2d Cir. 4 1 2006); see also Cheng Tong Wang v. Gonzales, 449 F.3d 451, 2 454 (2d Cir. 2006) (“This Court has repeatedly held that 3 omissions that go to a heart of an applicant’s claim can 4 form the basis for an adverse credibility determination.”). 5 Because substantial evidence supports the agency’s 6 adverse credibility determination, Pyie’s claims for asylum, 7 withholding of removal, and CAT relief fail because the only 8 evidence that he was likely to be persecuted or tortured 9 depended upon his credibility. See Paul v. Gonzales, 444 10 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang, 426 F.3d at 11 523. 12 II. Motion to Remand 13 The BIA’s denial of a motion to remand is held to the 14 substantive standard of review for motions to reopen and 15 reconsider, i.e., abuse of discretion. Li Yong Cao v. Dep’t 16 of Justice, 421 F.3d 149, 151 (2d Cir. 2005). The BIA did 17 not abuse its discretion in finding that the country 18 conditions evidence did not demonstrate Pyie’s prima facie 19 eligibility for the relief he sought in light of the adverse 20 credibility determination. See Kaur v. BIA, 413 F.3d 232, 21 233 (2d Cir. 2005) (per curiam). That finding was 22 dispositive of Pyie’s motion to remand. See INS v. Abudu, 23 485 U.S. 94, 104-05 (1988). 5 1 For the foregoing reasons, the petition for review is 2 DENIED. As we have completed our review, any stay of 3 removal that the Court previously granted in this petition 4 is VACATED, and any pending motion for a stay of removal in 5 this petition is DISMISSED as moot. Any pending request for 6 oral argument in this petition is DENIED in accordance with 7 Federal Rule of Appellate Procedure 34(a)(2), and Second 8 Circuit Local Rule 34.1(b). 9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, Clerk 11 6