Filed: Aug. 16, 2012
Latest Update: Mar. 26, 2017
Summary: 10-5048-ag Stolfa v. Holder BIA Reid, IJ A089 010 066 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 N
Summary: 10-5048-ag Stolfa v. Holder BIA Reid, IJ A089 010 066 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 NO..
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10-5048-ag
Stolfa v. Holder
BIA
Reid, IJ
A089 010 066
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 16th day of August, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 PIERRE N. LEVAL,
10 GERARD E. LYNCH,
11 Circuit Judges.
12 _____________________________________
13
14 JAROSLAV STOLFA,
15 Petitioner,
16
17 v. 10-5048-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Jaroslav Stolfa, pro se, Batavia,
25 New York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; John Hogan, Senior
29 Litigation Counsel; Ashley Y.
30 Martin, Trial Attorney, Office of
31 Immigration Litigation, U.S.
32 Department of Justice, Washington
33 D.C.
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 DISMISSED in part and DENIED in part.
5 Jaroslav Stolfa, a native of Czechoslovakia and citizen
6 of the Czech Republic, seeks review of a November 30, 2010,
7 decision of the BIA affirming the August 4, 2010, decision
8 of Immigration Judge (“IJ”) John B. Reid, denying his
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re
11 Jaroslav Stolfa, No. A089 010 066 (B.I.A. Nov. 30, 2010),
12 aff’g No. A089 010 066 (Immig. Ct. Batavia Aug. 4, 2010).
13 We assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as modified and supplemented by the BIA.
17 See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
18 The applicable standards of review are well-established.
19 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562
20 F.3d 510, 513 (2d Cir. 2009).
21 A. Asylum
22 We lack jurisdiction to review the agency’s decision
23 insofar as it pretermitted Stolfa’s asylum application as
24 untimely filed. See 8 U.S.C. § 1158(a)(3); Xio Ji Chen v.
2
1 United States Dep't of Justice, 471 F.3d 315, 323-24 (2d
2 Cir. 2006) (holding a court may review discretionary
3 decisions of the IJ only if they involve constitutional
4 claims or questions of law); see also Joaquin-Porras v.
5 Gonzales,
435 F.3d 172, 180 (2d Cir. 2006) ("[T]he IJ looked
6 to the facts and circumstances as presented in this case and
7 concluded that [Petitioner] did not qualify for an exception
8 [to the timeliness requirement]. We therefore conclude that
9 we cannot disturb the IJ's conclusion . . . ." (citation and
10 internal quotation marks omitted)).
11 B. Withholding of Removal
12 The agency denied withholding of removal based on an
13 adverse credibility determination. For the reasons that
14 follow, this determination is supported by substantial
15 evidence. We therefore need not address the agency's
16 alternative finding that Stolfa failed to establish
17 persecution on account of a protected ground.
18 For applications governed by the REAL ID Act, the
19 agency may, considering the totality of the circumstances,
20 base a credibility finding on an asylum applicant’s
21 demeanor, the plausibility of his account, and inconsistent
22 statements, without regard as to whether they go “to the
23 heart of [his] claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu
24 Xia Lin v. Mukasey, 534 F.3d 162, 165 (2d Cir. 2008). We
3
1 afford "particular deference" to an IJ's credibility
2 finding, especially when it is based on an assessment of the
3 applicant's demeanor. See Jin Chen v. United States Dep't
4 of Justice, 426 F.3d 104, 113 (2d Cir. 2005).
5 In assessing Stolfa's demeanor, the agency identified
6 multiple instances of evasive testimony. See Majidi v.
7 Gonzales,
430 F.3d 77, 82 n.1 (2d Cir. 2005) (determining
8 petitioner's evasive manner bolstered IJ's adverse
9 credibility determination). When asked about his work in
10 the United States from 1997-2004, Stolfa replied: "The job
11 in the United States and this and that and that, there were
12 lots of my friends leaving for the United States . . . .
13 They were doing job nobody wanted to do. They make money.
14 They get back to Czech Republic." It took prolonged
15 questioning to establish that Stolfa had worked connecting
16 others to jobs. When asked about his employment from 2009-
17 2010, Stolfa reverted to speaking about his work from 1997-
18 2004. Eventually, the IJ was able to determine that Stolfa
19 had worked, illegally, for a subcontractor cleaning floors.
20 The IJ did not err in concluding that Stolfa purposely
21 attempted to misdirect the Court, especially because many of
22 Stolfa's other answers, including those regarding his work
23 in the Czech Republic and the acquisition of his South
24 Carolina driver's license, were relatively straightforward.
4
1 The agency also found key parts of Stolfa's claim
2 implausible: that Stolfa, who testified that he was
3 generally apolitical, nevertheless gave an impromptu speech
4 at a political gathering of skinheads; that in the following
5 months, skinheads recognized Stolfa in other locations and
6 beat him; and that skinheads, without knowledge of Stolfa's
7 identity, obtained his cell phone number and threatened him.
8 The agency also questioned why Stolfa did not report the
9 attacks to the police. Suggesting an alternative
10 explanation for these incidents, the IJ noted that Stolfa's
11 I-213 form reported that he owed money to organized crime in
12 the Czech Republic (a claim Stolfa denies making).
13 C. CAT Relief
14 Because Stolfa failed to raise his CAT claim in his
15 brief to this Court, we deem that claim abandoned. See
16 Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir.
17 2005). Moreover, the CAT claim rests on the same factual
18 predicate as the withholding claim. See Paul v. Gonzales,
19
444 F.3d 148, 157 (2d Cir. 2006) ("[A] petition for CAT
20 relief may fail because of an adverse credibility ruling
21 rendered in the asylum context where the factual basis for
22 the alien's CAT claim was the same as that rejected in his
23 asylum petition.").
24
5
1 D. Additional Arguments
2 There is no support in the record for Stolfa's
3 contention that the IJ was biased against him, or his
4 assertion that the government's purportedly erroneous
5 classification of him as a criminal deprived him of a full
6 and fair opportunity to present his claims. See Ali v.
7 Mukasey, 529 F.3d 478, 490 (2d Cir. 2008) (holding that due
8 process requires that an applicant "be afforded the
9 opportunity to be heard at a meaningful time and in a
10 meaningful manner by an impartial and disinterested
11 tribunal" (citation and internal quotation marks omitted)).
12 We construe Stolfa’s challenge to his immigration
13 detention as a bail motion. See Bertin v. United States,
14
478 F.3d 489, 491 (2d Cir. 2007); Elkimya v. Dep’t of
15 Homeland Security,
484 F.3d 151, 153-54 (2d Cir. 2007).
16 However, he has failed to demonstrate that “‘extraordinary
17 circumstances exist[] that make the grant of bail necessary
18 to make the [petition for review] remedy effective.’”
19 Elkimya, 484 F.3d at 154 (alterations in original)(quoting
20 Mapp v. Reno,
241 F.3d 221, 230 (2d Cir. 2001)). Stolfa may
21 nevertheless file an application for custody or bond
22 redetermination with the IJ having jurisdiction over his
23 place of detention. See 8 C.F.R. § 1003.19(a)-(d).
24
6
1 For the foregoing reasons, the petition for review is
2 DISMISSED in part and DENIED in part. As we have completed
3 our review, the pending motion for a stay of removal in this
4 petition is DISMISSED as moot. Any pending request for oral
5 argument in this petition is DENIED in accordance with
6 Federal Rule of Appellate Procedure 34(a)(2), and Second
7 Circuit Local Rule 34.1(b).
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
10
11
7
