         09-2029-ag
         Ahmat v. Holder
                                                                                       BIA
                                                                                 Abrams, IJ
                                                                               A099 592 056
                            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 28th day of October, two thousand ten.
 5
 6       PRESENT:
 7
 8                DENNIS JACOBS,
 9                       Chief Judge
10                JON O. NEWMAN,
11                DENNY CHIN,
12                          Circuit Judges.
13       _______________________________________
14
15       ADOUM ALHADJI AHMAT,
16                Petitioner,
17
18                         v.                                   09-2029-ag
19                                                              NAC
20       ERIC H. HOLDER, JR., U.S. ATTORNEY
21       GENERAL,
22                Respondent.
23       ______________________________________
24
25       FOR PETITIONER:               Pro Se.
      1
      2   FOR RESPONDENT:          Tony West, Assistant Attorney
      3                            General; Leslie McKay, Assistant
      4                            Director; Jason Wisecup, Trial
      5                            Attorney, Office of Immigration
      6                            Litigation, Washington D.C.
      7
      8

      9       The parties have submitted a joint Stipulation and

     10   Order of Settlement and Dismissal that would remand this

     11   case to the Board   of Immigration Appeals (“BIA”).   For the

     12   following reasons, the Court declines to enter the

     13   stipulation.

14            Petitioner, Adoum Alhadji Ahmat, a native and citizen

15        of Chad, was admitted into the United States in June 2005.

16        In February 2006, following the expiration of his

17        nonimmigrant visa, Ahmat filed an affirmative application

18        for asylum, withholding of removal, and relief under the

19        Convention Against Torture (“CAT”), alleging that he had

20        been detained and beaten by police due to his support for

21        the Movement for Democracy and Justice in Chad (“MJDT”).

22        Because Ahmat filed his application after May 11, 2005, it

23        was governed by the REAL ID Act of 2005, Div. B of Pub. L.

24        No. 109-13, 119 Stat. 302, 303 (2005) (codified at 8 U.S.C.

25        § 1158(b)(1)(B)(iii)).   See In re S-B-, 24 I. & N. Dec. 42,

26        45 (B.I.A. 2006).



                                         2
 1       In April 2007, an immigration judge (“IJ”) denied

 2   Ahmat’s application for relief after finding him not

 3   credible.    Ahmat appealed to the BIA, which affirmed the

 4   IJ’s decision and dismissed the appeal in April 2009.

 5   However, the BIA applied the pre-REAL ID Act legal

 6   standards, concluding that the discrepancies the IJ

 7   identified “are substantial and go to the heart of [Ahmat]’s

 8   claim.”     See 8 U.S.C. § 1158(b)(1)(B)(iii) (stating that the

 9   agency may, considering the totality of the circumstances,

10   base a credibility finding on demeanor, plausibility, and

11   inconsistencies, without regard to whether they go “to the

12   heart of the applicant’s claim.”).     Following that decision,

13   Ahmat filed a petition for review in this Court.

14       In February 2010, the government moved to dismiss the

15   petition and remand to the BIA “to allow it to address the

16   impact, if any,” of the REAL ID Act on the credibility

17   determination.    We denied the government’s motion without

18   prejudice, directing it to file a brief addressing whether

19   the BIA’s application of the wrong legal standard was

20   harmless error “in light of the greater discretion afforded

21   immigration judges by the REAL ID Act to assess

22   credibility.”    Before the government filed its brief, the


                                     3
 1   parties submitted a joint stipulation to remand to the BIA

 2   for reconsideration under the REAL ID Act.*

 3       In the review of an adverse credibility determination

 4   “an error does not require remand if the remand would be

 5   pointless because it is clear that the agency would adhere

 6   to its prior decision in the absence of error.”       Xiao Ji

 7   Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 (2d Cir.

 8   2006).       In this case, remand would be pointless because the

 9   REAL ID Act provides greater, not less, support for the

10   agency’s adverse credibility determination.

11       The IJ’s decision found that Ahmat’s testimony (that he

12   was whipped while in detention) was inconsistent with his

13   asylum application (which did not mention that

14   mistreatment).       The BIA found that this inconsistency went

15   to the heart of Ahmat’s claim that he was beaten and

16   detained on account of his involvement in the MJDT.       Even

17   prior to the enactment of the REAL ID Act, this finding


              *
             We granted Ahmat’s attorney’s motion to withdraw as
       counsel in October 2009. In its motion to remand, the
       government stated that it was filing the motion “in lieu
       of a joint stipulation because Petitioner is currently
       pro se.” Although the subsequent joint stipulation is
       signed by Ahmat’s former attorney, he has not filed a
       notice of appearance in this case since the time of his
       withdrawal. Absent a new notice of appearance,
       Petitioner is assumed to be appearing pro se. See 2d
       Cir. Local Rule 12.3(b).
                                       4
 1   alone would likely have supported an adverse credibility

 2   determination.   See Majidi v. Gonzales, 430 F.3d 77, 80 (2d

 3   Cir. 2005) (determination supported by inconsistency between

 4   applicant’s written statement and hearing testimony

 5   regarding whether, during a particular incident on which his

 6   claim hinged, rival political party members had ransacked

 7   his home in his absence or had abused and threatened him

 8   personally).

 9       However, the IJ went further, finding that Ahmat “ha[d]

10   little knowledge regarding the MJDT” that he “did not know

11   the history of Chad” that he had no knowledge of the timing

12   and circumstances surrounding the death of Youssouf Togoimi,

13   the former leader of the MJDT, and that background evidence

14   in the record contradicted Ahmat’s testimony that no

15   individuals involved in the overthrow of the government had

16   ever been granted amnesty.    The BIA concluded that it was

17   “reasonable for the Immigration Judge to expect [Ahmat] to

18   know something about the political party to which he

19   purported he was a member.”

20       Given these findings, it is clear that the BIA’s

21   application of the wrong standard did not prevent it from

22   considering the “totality of the circumstances.”    8 U.S.C.

23   § 1158(b)(1)(B)(iii).   We can therefore predict with

                                    5
 1   confidence that, “upon a reconsideration cleansed of errors,

 2   the agency would reach the same result.”   Diallo v. U.S.

 3   Dep’t of Justice, 548 F.3d 232, 235 (2d Cir. 2008).

 4       For the foregoing reasons, we decline to enter the

 5   parties’ joint stipulation to remand.   The government is

 6   directed to file a responsive brief within 30 days of the

 7   date of this order.

 8                              FOR THE COURT:
 9                              Catherine O’Hagan Wolfe, Clerk
10
11
12




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