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