Filed: Mar. 25, 2013
Latest Update: Mar. 28, 2017
Summary: 11-2754 Mukhamedjanova v. Holder BIA Vomacka, IJ A087 563 662 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 (WI
Summary: 11-2754 Mukhamedjanova v. Holder BIA Vomacka, IJ A087 563 662 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 (WIT..
More
11-2754
Mukhamedjanova v. Holder
BIA
Vomacka, IJ
A087 563 662
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 25th day of March, two thousand thirteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 ROBERT A. KATZMANN,
10 GERARD E. LYNCH,
11 Circuit Judges.
12 _____________________________________
13
14 GULNORA ABRAROVNA MUKHAMEDJANOVA,
15 Petitioner,
16
17 v. 11-2754
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24
25
26 FOR PETITIONER: Alexander J. Segal, Grinberg &
27 Segal, PLLC, New York, New York.
28
1 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
2 Attorney General; Ernesto H. Molina,
3 Jr., Assistant Director; Joanna L.
4 Watson, Trial Attorney, Office of
5 Immigration Litigation, United
6 States Department of Justice,
7 Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DISMISSED in part and DENIED in part.
13 Gulnora Abrarovna Mukhamedjanova, a native of the
14 former Soviet Union and a citizen of Uzbekistan, seeks
15 review of a June 6, 2011, decision of the BIA affirming the
16 May 14, 2010, decision of Immigration Judge (“IJ”) Alan
17 Vomacka, which denied her application for asylum,
18 withholding of removal, and relief under the Convention
19 Against Torture (“CAT”). In re Gulnora Abrarovna
20 Mukhamedjanova, No. A087 563 662 (B.I.A. June 6, 2011),
21 aff’g No. A087 563 662 (Immig. Ct. N.Y. City May 14, 2010).
22 We assume the parties’ familiarity with the underlying facts
23 and procedural history in this case.
24 Under the circumstances of this case, we have reviewed
25 the IJ’s decision as supplemented by the BIA. See Yan Chen
26 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
2
1 applicable standards of review are well-established. See
2 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,
3 562 F.3d 510, 513 (2d Cir. 2009). Mukhamedjanova challenges
4 the pretermission of her asylum application as untimely, the
5 adverse credibility determination, and the denial of her
6 motion to remand.
7 I. Asylum
8 Under 8 U.S.C. § 1158(a)(3), no court shall have
9 jurisdiction to review the agency’s finding that an asylum
10 application was untimely under § 1158(a)(2)(B), or its
11 finding of neither changed nor extraordinary circumstances
12 excusing the untimeliness under § 1158(a)(2)(D), unless the
13 petition raises a constitutional claim or a question of law,
14 8 U.S.C. § 1252(a)(2)(D). Because Mukhamedjanova challenges
15 only a factual determination and the agency’s exercise of
16 discretion, the petition is dismissed as to Mukhamedjanova’s
17 asylum claim. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
18 F.3d 315, 329 (2d Cir. 2006).
19 II. Withholding of Removal
20 For applications (such as Mukhamedjanova’s) that are
21 governed by the amendments made to the Immigration and
22 Nationality Act by the REAL ID Act of 2005, the agency may,
3
1 considering the totality of the circumstances, base a
2 credibility determination on the “demeanor, candor, or
3 responsiveness of the applicant...the internal consistency
4 of [the applicant’s] statement[s], [and] the consistency of
5 such statements with other evidence of record ... without
6 regard to whether an inconsistency ... goes the heart of the
7 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see also
8 8 U.S.C. § 1231(b)(3)(C) (incorporating § 1158(b)(1)(B)(iii)
9 for withholding of removal); Xiu Xia Lin v. Mukasey, 534
10 F.3d 162, 167 (2d Cir. 2008) (per curiam).
11 The agency found that Mukhamedjanova was not credible
12 because of inconsistent testimony regarding when she learned
13 of a friend’s activity with the Birlik Party, how often she
14 attended Party meetings, whether another friend was arrested
15 in 2007 or 2008, whether she was detained while interrogated
16 at a prosecutor’s office in 2008, when she met a former
17 partner, and whether she received threatening phone calls
18 from her former partner’s husband. Because Mukhamedjanova
19 does not dispute that her testimony was internally
20 inconsistent regarding her meeting attendance, or that her
21 application omitted the threats from her partner’s husband,
22 and because the remaining inconsistencies are supported by
4
1 the record, the adverse credibility determination is
2 supported by substantial evidence. See Xiu Xia Lin, 534
3 F.3d at 167.
4 Moreover, the adverse credibility determination is
5 further supported by the agency’s conclusion that
6 Mukhamedjanova’s testimony about her involvement with the
7 Birlik Party was vague, confused and unresponsive. See
8 Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
9 Since Mukhamedjanova’s credibility was thus called into
10 question, the agency was permitted to rely in addition on
11 her failure to proffer corroboration. Biao Yang v.
12 Gonzales,
496 F.3d 268, 273 (2d Cir. 2007) (per curiam),
13 without following the procedural requirements in 8 U.S.C.
14 § 1158(b)(1)(B)(ii), see Xiao Ji Chen, 471 F.3d at 342
15 (explaining requirement that IJ identify and discuss
16 availability of each piece of corroborative evidence applies
17 only to otherwise credible applicants).
18 Mukhamedjanova argues that the agency’s adverse
19 credibility determination did not reach her fear of future
20 persecution because it did not enter an explicit finding as
21 to her sexual orientation. However, the IJ explicitly cited
22 her inconsistent testimony and lack of corroboration on this
23 point as part of the adverse credibility determination.
5
1 III. Motion to Remand
2 Finally, the agency did not abuse its discretion in
3 denying remand because the evidence Mukhamedjanova submitted
4 did not rehabilitate her credibility and thus was not
5 material to her claim. See Sanusi v. Gonzales, 445 F.3d
6 193, 200-01 (2d Cir. 2006); Kaur v. BIA,
413 F.3d 232, 233
7 (2d Cir. 2005) (per curiam).
8 For the foregoing reasons, the petition for review is
9 DISMISSED in part and DENIED in part. As we have completed
10 our review, any stay of removal that the Court previously
11 granted in this petition is VACATED, and any pending motion
12 for a stay of removal in this petition is DISMISSED as moot.
13 Any pending request for oral argument in this petition is
14 DENIED in accordance with Federal Rule of Appellate
15 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
6
