NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-2628
___________
LATIFULLAH OBEDULLAH,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A093-330-060)
Immigration Judge: Honorable Dorothy Harbeck
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 19, 2012
Before: SCIRICA, VANASKIE and COWEN, Circuit Judges
(Opinion filed: January 28, 2013)
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OPINION
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PER CURIAM
Latifullah Obedullah petitions for review of a decision of the Board of
Immigration Appeals (BIA). For the reasons below, we will deny the petition for review.
Obedullah, a native of Afghanistan, entered the United States in May 2008 as a
nonimmigrant visitor. In March 2009, he was charged as removable for overstaying his
admission period and failing to comply with the conditions of his nonimmigrant status.
He conceded removability and applied for asylum, withholding of removal, and relief
under the Convention Against Torture (CAT). He asserted that he would be persecuted
in Afghanistan based on his father’s military history and opposition to the Taliban. After
a hearing, an Immigration Judge (IJ) denied relief after finding Obedullah not credible.
Obedullah filed an appeal and a motion to remand.
The BIA dismissed Obedullah’s appeal. It found no clear error in the IJ’s adverse
credibility finding and concluded that Obedullah had not met his burden to establish
eligibility for asylum or withholding of removal. A.R. at 5. As for the motion to remand,
the BIA determined that Obedullah had not shown that the evidence he submitted was not
previously available or would change the outcome of his case. Obedullah filed a timely
petition for review.
We have jurisdiction under 8 U.S.C. § 1252. To establish eligibility for asylum,
Obedullah needed to demonstrate either past persecution or a well-founded fear of future
persecution on account of race, religion, nationality, membership in a particular social
group, or political opinion. See Wang v. Gonzales, 405 F.3d 134, 138 (3d Cir. 2005). To
establish eligibility for withholding of removal, he needed to demonstrate that it was
more likely than not that his life or freedom would be threatened in Afghanistan on
account of a protected ground. 8 U.S.C. § 1231(b)(3)(A). To be eligible for withholding
of removal under the Convention Against Torture, he needed to demonstrate that it is
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more likely than not that he would be tortured if removed to Afghanistan. 8 C.F.R. §
1208.16(c)(2). We may not reverse the BIA’s decision unless the record evidence would
compel a reasonable fact-finder to conclude that Obedullah had met his burden. I.N.S. v.
Elias-Zacarias, 502 U.S. 478, 481 (1992). We must uphold the adverse credibility
finding unless any reasonable adjudicator would be compelled to conclude to the
contrary. Fiadjoe v. Att’y Gen., 411 F. 3d 135, 153 (3d Cir. 2005).
Obedullah argues that the adverse credibility determination was not supported by
substantial evidence. First, he contends that the BIA wrongly concluded that he had
omitted from his original declaration a significant incident in which he secured his
father’s release from the Taliban. However, the declaration he cites to in support of this
argument is from his supplemental declaration. His original declaration made no mention
of the incident. The BIA noted that:
When asked to explain the omission, the respondent first stated that the
person assisting him with his application would select the incidents for him.
Later, he explained that he only remembered the incident when he
completed his application, but that it was emotionally difficult to discuss.
Later, he stated that there was only so much he could tell his attorney in 1-2
hours.
A.R. at 4 (citations omitted). The BIA also noted that Obedullah’s father did not mention
this incident in his affidavit. The affidavit of Obedullah’s psychotherapist is not
corroborative because it is not based on personal knowledge; she was merely relating
what Obedullah told her. The BIA did not err in relying on this omission in upholding
the adverse credibility finding.
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Next, Obedullah contends that the BIA failed to properly consider his explanation
for an inconsistency between his testimony and his written statement regarding whether
he had ever been arrested. The BIA observed:
For instance, the respondent also stated in his 1-589 application that he had
never been arrested. However, on direct, the respondent testified that he
was arrested and detained when he was 8-years-old. The respondent first
explained the inconsistency by stating that he was only asked for
information from the last ten-years, then he stated that his attorney told him
he did not have to include every event, later he stated that he did not
include the arrest because he was not “doing so well [emotionally]” in
detention.
A.R. at 4 (citations omitted). Obdeullah points to statements by his psychotherapist and
Naser Moborez as corroboration. However, the psychotherapist merely states that
Obedullah reported this incident to her. Moborez’s statement was submitted to the BIA
with Obedullah’s motion to remand; it was not before the IJ. Furthermore, Moborez does
not state that he has any personal knowledge as to the incident, only that the attempts
made against Obedullah and his family are common knowledge. It was not improper for
the BIA to rely on this inconsistency in upholding the adverse credibility finding.
Finally, Obedullah asserts that the BIA failed to meaningfully consider his post-
traumatic stress disorder (PTSD) in evaluating his credibility. The BIA rejected
Obedullah’s argument that the IJ failed to consider his PTSD. A.R. at 4 n.2. The IJ
thoroughly summarized the testimony of the clinical social worker who evaluated
Obedullah. A.R. at 74-76. In discussing the credibility determination, the IJ explicitly
noted Obedullah’s testimony on cross-examination that some inconsistencies were
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because events were “emotionally difficult” and he was “not doing well” in detention
when he completed his application. A.R. at 82.
Obedullah argues that the BIA failed to consider the attempts his counsel made to
have his witnesses testify telephonically from the embassy in Afghanistan. However, in
his brief before the BIA, Obedullah admitted that the IJ stated that while it would be
optimal if the witnesses testified from the embassy, Obedullah could let the IJ know if
that was an impossibility. She indicated that she would still listen to the witnesses
telephonically but would need to know why they could not go to the embassy. App. at
30-31. The BIA noted the IJ’s observation that Obedullah was in contact with his father
and could have reasonably arranged to have him testify telephonically.
Obedullah also challenges the BIA’s determination that he failed to supply
corroborating evidence. He also contends that the BIA did not discuss the corroborating
evidence that he submitted. He asserts that he submitted documents from the President of
Afghanistan, a Governor, and a member of the Ministry of the Interior.
The IJ noted that Obedullah had submitted several letters concerning his father’s
position in the military and his fighting against the Taliban. She determined that these
documents were unreliable and noted that Obedullah had not presented his father for
telephonic testimony. A.R. at 78-79. The IJ gave the documents minimal weight because
they were unauthenticated, obtained solely for the purpose of the hearing, and the authors
were not subject to cross-examination. Moreover, the IJ concluded that this evidence did
not establish that the Taliban persecutes family members of military figures. As noted by
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the IJ, Obedullah admitted that his siblings, wife, and other family have lived in
Afghanistan unharmed. A.R at 87.
After upholding the adverse credibility finding, the BIA concluded that Obedullah
could not carry his burden of proof without credible evidence. After agreeing with the IJ
that Obedullah had not met his burden on his claims for relief, the BIA noted that it need
not reach Obedullah’s remaining arguments. We have previously explained that the BIA
is not required to “write an exegesis on every contention. What is required is merely that
it consider the issues raised, and announce its decision in terms sufficient to enable a
reviewing court to perceive that it has heard and thought and not merely reacted.” Filja v.
Gonzales, 447 F.3d 241, 256 (3d Cir. 2006) (citation omitted). Obedullah has not shown
that his evidence would compel a finding that he was credible or entitled to relief.
With respect to the motion to remand, Obedullah argues that the BIA refused to
consider the entirety of the evidence submitted with the motion. He challenges the
BIA’s determination that evidence of his working for a company that provides assistance
to the United States military would not change the outcome of his case. A motion to
remand is the functional equivalent of a motion to reopen. Korytnyuk v. Ashcroft, 396
F.3d 272, 282 (3d Cir. 2005). We review the denial of a motion to reopen for an abuse of
discretion. Filja, 447 F.3d at 251.
The BIA observed that Obedullah had not explained how the new evidence would
change the IJ’s credibility determination. A.R. at 6. In his motion to remand, Obedullah
simply stated that if the Taliban knew of his work, it would be an additional basis for
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persecution. However, he did not point to any evidence in the record supporting a claim
that the Taliban targets those who have worked with the United States military. As for
the affidavit of Naser Moborez, the BIA noted that Obedullah had not presented any
argument as to why the affidavit was not previously available except to state that
Obedullah was not in contact with Moborez. Obedullah contends that the BIA ignored
other evidence submitted with the motion to remand; however, the BIA noted that
Obedullah had submitted documents previously considered by the IJ. Obedullah himself
admitted in the motion to remand that the documents had already been submitted.
Obeduallah has not shown that the BIA abused its discretion in denying the motion to
remand.
For the reasons above, we will deny the petition for review.
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