         09-2361-ag
         Carrera Veliz v. Holder
                                                                                       BIA
                                                                                  Romig, IJ
                                                                               A070 775 595
                                   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 3 rd day of May, two           thousand ten.
 5
 6       PRESENT:
 7                ROBERT D. SACK,
 8                ROBERT A. KATZMANN,
 9                GERARD E. LYNCH,
10                      Circuit Judges.
11       _______________________________________
12
13       ORLANDO CARRERA VELIZ,
14                Petitioner,
15
16                            v.                                09-2361-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                    Enrique Peña-Pérez, New York, New
24                                          York.
25
26       FOR RESPONDENT:                    Tony West, Assistant Attorney
27                                          General, Douglas E. Ginsburg,
28                                          Assistant Director, Paul Fiorino,
29                                          Trial Attorney, Office of
30                                          Immigration Litigation, United
31                                          States Department of Justice,
32                                          Washington, 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 DENIED.

5        Orlando Carrera Veliz, a native and citizen of

6    Guatemala, seeks review of a May 11, 2009, order of the BIA,

7    affirming the August 3, 2007, decision of Immigration Judge

8    (“IJ”) Jeffrey L. Romig, which denied his applications for

9    asylum, withholding of removal, and relief under the

10   Convention Against Torture (“CAT”), and cancellation of

11   removal.     In re Orlando Carrera Veliz, No. A070 775 595

12   (B.I.A. May 11, 2009), aff’g No. A070 775 595 (Immig. Ct.

13   N.Y. City Aug. 3, 2007).     We assume the parties’ familiarity

14   with the underlying facts and procedural history in this

15   case.

16       Under the circumstances of this case, we review the

17   IJ’s decision.     See Chun Gao v. Gonzales, 424 F.3d 122, 124

18   (2d Cir. 2005).     We review legal issues de novo, Aslam v.

19   Mukasey, 537 F.3d 110, 114 (2d Cir. 2008), and “the agency’s

20   factual findings, including adverse credibility

21   determinations, under the substantial evidence standard,

22   treating them as ‘conclusive unless any reasonable



                                     2
1    adjudicator would be compelled to conclude to the

2    contrary,’” Liang Chen v. U.S. Att’y Gen., 454 F.3d 103, 105

3    (2d Cir. 2006), quoting 8 U.S.C. § 1252(b)(4)(B).

4    I.       Due Process

5         Carrera Veliz asserts that his due process rights were

6    violated because his removal proceeding was conducted via

7    video conference.    As this Court has explained, “an IJ has

8    statutory authority to conduct entire proceedings via video

9    conference,” as long as the proceedings “still accord with

10   the constitutional requirements for due process under [the

11   Supreme Court’s decision in] Mathews v. Eldridge.”       Aslam,

12   537 F.3d at 114 (explaining that under Mathews due process

13   requires that, at a minimum, petitioners are accorded an

14   opportunity to be heard at a meaningful time and in a

15   meaningful manner), citing Mathews v. Eldridge, 424 U.S.

16   319, 333 (1976); see also 8 U.S.C. § 1229a(b)(2)(A)(iii)

17   (stating that removal proceedings may take place through

18   video conference).    In Aslam, while noting the risks posed

19   by videoconference hearings, we rejected a petitioner’s

20   claim that he was denied due process when a witness’s

21   testimony was taken by video.       Aslam, 537 F.3d at 115.

22        Carrera Veliz did not object to the video conference at


                                     3
1    the time of the proceedings.    Indeed, like the petitioner in

2    Aslam, 537 F.3d at 115, Carrera Veliz rejected the IJ’s

3    proposal of a change of venue to permit an in person

4    hearing.    Nevertheless, he asserts that he was not accorded

5    a full and fair hearing because the IJ was unable to assess

6    his demeanor in person.    However, the IJ did not deny

7    Carrera Veliz’s applications for relief based on his

8    demeanor.    Similarly, although Carrera Veliz asserts that

9    the video conference rendered the IJ unable to consider his

10   level of education, he fails to explain how an in-person

11   hearing would have either allowed the IJ to better

12   understand his education level or otherwise remedied any

13   alleged deficiency in the proceeding.

14         Because Carrera Veliz fails to demonstrate that he was

15   not afforded the opportunity to be heard in a meaningful

16   manner, his arguments challenging the constitutionality of

17   his video conference proceedings are meritless.    See id.

18   114-15.

19   II.         Asylum, Withholding of Removal, and CAT Relief

20         In making his adverse credibility determination, the IJ

21   reasonably relied on Carrera Veliz’s inconsistent testimony

22   regarding how long he stayed in Guatemala following his


                                     4
1    alleged period of detention – Carrera Veliz testified that

2    he stayed for a year or two, but his asylum application

3    materials suggested he had only stayed for a month or two.

4    See Liang Chen, 454 F.3d at 106-07 (2d Cir. 2006).     The IJ

5    reasonably found that the discrepancy was significant, and

6    that the attempted explanation that Carrera Veliz was

7    actually referring to time spent in Mexico was unpersuasive,

8    as Carrera Veliz’s Form I-589 stated that he was only “in

9    transit” in Mexico before arriving in the United States, not

10   for one or two years as his testimony suggested.     See Majidi

11   v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).

12       Additionally, the IJ found that Carrera Veliz’s

13   “willingness to return to Guatemala in September 1993,

14   albeit to visit his father due to an illness, suggest[ed]

15   that his claimed fear of return to that country was not

16   subjectively genuine.”   See Wensheng Yan v. Mukasey, 509

17   F.3d 63, 68 n.2 (2d Cir. 2007).

18       Ultimately, the IJ’s adverse credibility determination

19   was supported by substantial evidence.   See Tu Lin v.

20   Gonzales, 446 F.3d 395, 400 (2d Cir. 2006).   The agency’s

21   denial of Carrera Veliz’s applications for asylum,

22   withholding of removal, and CAT relief was therefore

23   reasonable, because all three claims rested on the same
                                   5
1    factual predicate.    See Paul v. Gonzales, 444 F.3d 148, 156

2    (2d Cir. 2006); see also Xue Hong Yang v. U.S. Dep’t. of

3    Justice, 426 F.3d 520, 523 (2d Cir. 2005).

4    III.       Cancellation of Removal

5           8 U.S.C. § 1252(a)(2)(B)(i) provides that this Court

6    does not have jurisdiction to review an agency’s denial of

7    an application for cancellation of removal.    However, this

8    court may invoke its jurisdiction to consider a

9    constitutional claim or a question of law.    See Xiao Ji Chen

10   v. U.S. Dep’t of Justice, 471 F.3d 315, 329-30 (2d Cir.

11   2006); 8 U.S.C. § 1252(a)(2)(D).

12          Here, Carrera Veliz presents a question of law by

13   arguing that his due process rights were violated because

14   the IJ excluded evidence that he sought to admit during his

15   removal proceeding.    See Xiao Ji Chen, 471 F.3d at 329-30.

16   However, as the IJ explained during the hearing, Carrera

17   Veliz was afforded the opportunity to submit evidence until

18   10 days in advance of the hearing, and because he failed to

19   submit the evidence 10 days in advance of the hearing, the

20   IJ reasonably declined to admit it.    See

21   8 C.F.R. § 1003.31(c).    Thus, the IJ did not err in

22   declining to admit Carrera Veliz’s untimely evidence.      In


                                    6
1    any event, as the BIA explained, Carrera Veliz was not

2    prejudiced by the IJ’s refusal to admit updated additional

3    evidence regarding his son’s learning disability into the

4    record, because the IJ specifically considered his son’s

5    disability as an aspect of hardship in his case.

6         Finally, while Carrera Veliz asserts in his brief that

7    the agency erred in characterizing him as an “arrival [sic]

8    alien,” this argument is meritless.     The agency properly

9    determined that Carrera Veliz is an “arriving alien” because

10   his parole status has been terminated.     See 8 C.F.R. §

11   212.5(e).

12       For the foregoing reasons, the petition for review is

13   DENIED.     As we have completed our review, any stay of

14   removal that the Court previously granted in this petition

15   is VACATED, and any pending motion for a stay of removal in

16   this petition is DISMISSED as moot.

17                                 FOR THE COURT:
18                                 Catherine O’Hagan Wolfe, Clerk
19
20




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