09-3425-ag
    Oudit v. Holder
                                                                                  BIA
                                                                           Vomacka, IJ
                                                                          A097 531 241
                       UNITED STATES COURT OF APPEALS
                           FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
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         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 7th day of December, two thousand ten.

    PRESENT:
             ROBERT D. SACK,
             ROBERT A. KATZMANN,
             DENNY CHIN,
                 Circuit Judges.
    _______________________________________
    STEVE OUDIT,
             Petitioner,
                      v.                                   09-3425-ag
                                                           NAC
    ERIC H. HOLDER, JR., U.S.
    ATTORNEY GENERAL
             Respondent.
    ______________________________________
    FOR PETITIONER:               Visuvanathan Rudrakumaran, Law
                                  Office of V. Rudrakumaran, New York,
                                  N.Y.

    FOR RESPONDENT:               Liza S. Murcia, Attorney, Office of
                                  Immigration Litigation, for Jennifer
                                  Paisner Williams, Senior Litigation
                                  Counsel, and Tony West, Assistant
                                  Attorney General, Civil Division,
                                  United States Department of Justice,
                                  Washington, D.C.
    UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

    Petitioner Steve Oudit, a native and citizen of

Trinidad and Tobago, seeks review of a July 13, 2009 order

of the BIA affirming the January 15, 2008 decision of

Immigration Judge (“IJ”) Alan A. Vomacka denying his

application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”).     In re Steve

Oudit, No. A097 531 241 (B.I.A. July 13, 2009), aff’g No.

A097 531 241 (Immig. Ct. N.Y. City Jan. 15, 2008).     We

assume the parties’ familiarity with the underlying facts

and procedural history in this case.

    In the circumstances of this case, we review the IJ’s

decision as supplemented by the BIA’s decision.     See Yan

Chen v. Gonzales, 

, 271 (2d Cir. 2005). This

Court reviews the agency’s factual findings for substantial

evidence.    8 U.S.C. § 1252(b)(4)(B); see also Jian Hui Shao

v. Mukasey, 

, 157-58 (2d Cir. 2008).     It reviews

de novo questions of law and the application of law to

undisputed fact.    Salimatou Bah v. Mukasey, 

, 110

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(2d Cir. 2008).

    As an initial matter, we decline to consider Oudit’s

unexhausted argument that the IJ was biased.       See Lin Zhong

v. U.S. Dep't of Justice, 

, 119-20 (2d Cir.

2007).

    The agency reasonably found that Oudit was not credible

because of inconsistencies in his testimony, his demeanor,

and his failure to provide adequate evidence corroborating

his testimony.    Under the REAL ID Act, which applies in this

case, the agency may, considering the totality of the

circumstances, base a credibility finding on an asylum

applicant’s “demeanor, candor, or responsiveness,” the

plausibility of his or her account, and inconsistencies in

his or her statements, without regard to whether they go “to

the heart of the applicant’s claim.”    8 U.S.C.

§ 1158(b)(1)(B)(iii).    Although Oudit argues that the agency

failed to consider evidence of conditions in his home

country, the record suggests otherwise.    See Xiao Ji Chen v.

U.S. Dep’t of Justice, 

, 337 n.17 (2d Cir.

2006).   Indeed, the BIA explicitly acknowledged evidence of

“problems involving police in Trinidad and Tobago” in its

decision.


                               3
    Oudit, however, is correct in arguing that some of the

IJ’s findings, on which he based his adverse credibility

determination, were not supported by the record.     First, the

IJ’s finding that Oudit was inconsistent about the number of

beatings he suffered was based on a misstatement of the

record, conflating Oudit’s testimony about when the police

came to his store with testimony about when he was beaten by

the police.   See Zhou Yun Zhang v. U.S. INS, 

, 73

(2d Cir. 2004) (“[O]ur review is meant to ensure that

credibility findings are based upon neither a misstatement

of the facts in the record nor bald speculation or

caprice.”), overruled on other grounds by Shi Liang Lin v.

U.S. Dep’t of Justice, 

(2d Cir. 2007).     Second,

the IJ’s finding that Oudit was inconsistent about where on

his body he was beaten by cable wire was based on a

misquotation of Oudit’s asylum application.   Finally, the

IJ’s finding that the beatings Oudit had alleged were

inconsistent with his scars was improper because it involved

fact finding “beyond ordinary judicial competence.”1    Li Hua

      1
        The IJ’s attempt to buttress his finding by
  suggesting that Oudit’s scars were caused by construction
  work or trouble with the police due to his history of
  drinking was also based on speculation. See Siewe v.
  Gonzales, 

, 168-69 (2d Cir. 2007) (discussing
  how speculation can undermine fact finding).
                              4
Lin v. U.S. Dep’t of Justice, 

, 111 (2d Cir.

2006); see also Edimo-Doualla v. Gonzales, 

, 285

(2d Cir. 2006) (“It was speculative for the IJ to assume

that scars were necessary either to corroborate

Edimo-Doualla’s account or to establish a level of abuse

amounting to persecution.”).

    Nevertheless, remand is not necessary in this case

because “we can state with confidence that the IJ would

adhere to his decision were the petition remanded.”      Xiao Ji

.   In contrast to Li Hua Lin, here

there is no indication that the IJ’s erroneous findings were

“central” to his 

.   Although the

agency erred in finding some inconsistencies in Oudit’s

testimony that are not supported by the record, there are

“ample, error-free grounds that provide substantial evidence

to support the IJ’s adverse credibility determination.”

Singh v. BIA, 

, 149 (2d Cir. 2006).

    The agency’s adverse credibility finding reasonably

relied on several material inconsistencies in Oudit’s

testimony that were supported by the record.      Substantial

evidence in the record supports the IJ’s findings that Oudit

was inconsistent regarding whether (1) his wife and daughter


                                5
moved to the United States after his problems with the

police, (2) he was beaten two days in a row by the police in

August 1998, and (3) he was beaten with a cable by the

police in October 1998.     Although Oudit has attempted to

offer explanations for these inconsistencies, none of these

explanations compels the conclusion that his statements were

not inconsistent.   See Majidi v. Gonzales, 

,

80-81 (2d Cir. 2005) (“A petitioner must do more than offer

a plausible explanation for his inconsistent statements to

secure relief; he must demonstrate that a reasonable

fact-finder would be compelled to credit his testimony.”

(internal quotation marks omitted) (emphasis in original)).

    Moreover, the IJ reasonably based his adverse

credibility determination on demeanor, finding that Oudit

was unresponsive.   We defer to that finding because the IJ

had “the unique advantage . . . of having heard directly

from the applicant.”   

n.1 (internal

quotation marks omitted).

    Finally, the IJ reasonably found that Oudit was not

credible because he failed to adduce corroborating evidence

to rehabilitate his questionable testimony.     See Biao Yang

v. Gonzales, 

, 273 (2d Cir. 2007) (per curiam).


                                6
The IJ reasonably gave little weight to the letters from

business owners submitted by Oudit because they contained

similar language, did not include any verification of the

authors’ identity, and were hearsay.     In addition, the

letter from Oudit’s sister failed to indicate her

relationship to Oudit.   See Xiao Ji 

(finding that the weight afforded to the applicant’s

evidence “lies largely” within the discretion of the agency)

(internal alteration omitted).     The IJ also reasonably

suggested that Oudit should have provided corroborating

evidence from his wife, lawful permanent resident sister, or

a doctor.   Contrary to Oudit’s claims, an IJ need not first

identify the particular pieces of missing, relevant evidence

before relying on a lack of corroboration to support an

adverse credibility finding.     See Xiao Ji 

.   Although an IJ may not base an adverse credibility

finding on the absence of corroborating evidence that was

not reasonably available to the applicant, it was reasonable

for the IJ to expect that Oudit had access to a doctor and

could have offered the testimony of his wife and

sister-in-law, both of whom were living in the United

States.


                               7
    In view of the inconsistencies in Oudit’s testimony

that were supported by the record, the IJ’s demeanor

finding, and Oudit’s failure to rehabilitate his testimony

with adequate corroborating evidence, we conclude that

substantial evidence supported the IJ’s adverse credibility

determination. See 8 U.S.C. § 1158(b)(1)(B)(iii).     Remand

therefore is not necessary.    Xiao Ji 

.

Because Oudit’s claims for withholding of removal and CAT

relief share the same “factual basis,” Paul v. Gonzales, 

, 156 (2d Cir. 2006), the agency’s adverse

credibility determination is dispositive of Oudit’s

petition.

    For the foregoing reasons, the petition for review is

DENIED.

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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