Filed: Jun. 17, 2013
Latest Update: Mar. 28, 2017
Summary: 11-367-ag BIA Babar v. Holder Montante, IJ A088 187 868 A088 187 869 A088 187 870 A088 187 871 A088 187 872 A088 187 873 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 CIT
Summary: 11-367-ag BIA Babar v. Holder Montante, IJ A088 187 868 A088 187 869 A088 187 870 A088 187 871 A088 187 872 A088 187 873 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..
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11-367-ag BIA
Babar v. Holder Montante, IJ
A088 187 868
A088 187 869
A088 187 870
A088 187 871
A088 187 872
A088 187 873
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 17th day of June, two thousand thirteen.
PRESENT:
ROSEMARY S. POOLER,
ROBERT D. SACK,
RICHARD C. WESLEY,
Circuit Judges.
________________________________
MOHAMMED BABAR, SHAZIA BABAR BANO,
FARAH RANI BABAR, OWAIS BABAR,
ALI BABAR, HUSSAIN BABAR,
Petitioners,
v. 11-367
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
________________________________
FOR PETITIONERS: E. Dennis Muchnicki, Dublin, Ohio.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Jennifer P. Levings, Senior
Litigation Counsel; Jennifer R.
Khouri, Trial Attorney, Office of
Immigration Litigation, 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.
Mohammed Babar (“Babar”), Shazia Babar Bano, and their
children Farah Rani Babar, Owais Babar, and Ali Babar,
natives and citizens of Pakistan, and their child Hussain
Babar, a native and citizen of Canada, seek review of a
January 6, 2011, decision of the BIA affirming the April 6,
2009, decision of Immigration Judge (“IJ”) Philip J.
Montante, Jr., which denied Mr. Babar’s application for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”).1 In re Mohammed Babar
et al., Nos. A088 187 868/869/870/871/872/873 (B.I.A. Jan.
6, 2011), aff’g Nos. A088 187 868/869/870/871/872/873
1
Babar’s asylum application included his wife and
the four children as derivative applicants, as permitted
by 8 U.S.C. § 1158(b)(3)(A).
2
(Immig. Ct. Buffalo Apr. 6, 2009). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as supplemented by the BIA. See Yan Chen
v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
applicable standards of review are well-established. See 8
U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,
562
F.3d 510, 513 (2d Cir. 2009). For asylum applications such
as Babar’s, governed by the amendments made to the
Immigration and Nationality Act by the REAL ID Act of 2005,
the agency may, considering the totality of the
circumstances, base a credibility finding on inconsistencies
or omissions in the applicant’s statements, without regard
to whether the inconsistencies or omissions go “to the heart
of the applicant’s claim.” See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey,
534 F.3d 162,
167 (2d Cir. 2008).
Here, the agency reasonably relied on internally
contradictory testimony – Babar’s initial testimony that his
asylum claims in the United States and Canada were the same,
and later testimony that his false Canadian asylum
3
application was different – to find him incredible. See
id.; see also Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.
2007). Moreover, in his application, Babar, a Shia Muslim,
stated that he feared returning to Pakistan because his
wife’s family would surrender him to Sipah Sahaba, a Sunni
Muslim terrorist group, and take away his children. While
the IJ’s decision mischaracterized Babar’s testimony by
incorrectly stating that he did not mention Sipah Sahaba
during his hearing, this error was harmless because the BIA
reasonably concluded that Babar’s failure to testify about
his wife’s family’s threats to turn him over to Sipah Sahaba
and take away his children were material omissions
negatively impacting his credibility. See U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. Babar
contends that the IJ failed to provide him an opportunity to
explain his inconsistent testimony, but the IJ explicitly
called the inconsistencies to his attention, and reasonably
declined to credit his explanation that the discrepancies
resulted from inadequate preparation time, especially where
the omissions were from the testimony, not the application.
See Majidi v. Gonzales,
430 F.3d 77, 80-81 (2d Cir. 2005).
4
Babar also argues that the IJ’s and BIA’s alternative
burden of proof findings were legally erroneous in “not
considering” and in “not admitting” corroborating evidence
consisting of letters from family and neighbors in Pakistan.
Indeed, the IJ stated during the hearing that such evidence
would not be received. However, at the end of the hearing,
when announcing his decision, the IJ stated that he “weighed
and considered the totality of the testimonial and
documentary evidence or record in the aggregate,” and that
the evidence at issue was “received into evidence.” This
declaration during the decision is fatal to Babar’s claim
that the IJ failed to admit the evidence. The IJ’s ultimate
determination that he “weighed and considered” the evidence
does not compellingly suggest that he failed to consider the
evidence. Xiao Ji Chen v. Mukasey, 471 F.3d 315, 337 n. 17
(2d Cir. 2006). While we acknowledge the IJ’s lack of
clarity in his decision, see Dong Zhong Zheng v. Mukasey,
552 F.3d 277, 285 (2d Cir. 2009), even if the agency erred
by failing to address each of Babar’s evidentiary
submissions, see Zhi Yun Gao v. Mukasey,
508 F.3d 86, 87 (2d
Cir. 2007), remand would be futile because we can
confidently “predict that the agency would reach the same
decision absent the errors that were made.” Shunfu Li v.
5
Mukasey, 529 F.3d 141, 150 (2d Cir. 2008) (quoting Xiao Ji
Chen, 471 F.3d at 339); see also Cao He Lin v. U.S. Dep’t of
Justice,
428 F.3d 391, 401-02 (2d Cir. 2005).
As the only evidence of a threat to Babar’s life or
freedom depended upon his credibility, the adverse
credibility determination in this case necessarily precludes
success on the claims for asylum, withholding of removal,
and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d
Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice,
426 F.3d
520, 523 (2d Cir. 2005).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
6
