         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 16th day of March, two thousand eleven.
 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       UPON DUE CONSIDERATION of this petition for review of

      8   the Board of Immigration Appeals (“BIA”) decision, it is

      9   hereby ORDERED, ADJUDGED, and DECREED that the petition for

     10   review is DENIED.

11            Petitioner, Adoum Alhadji Ahmat, a native and citizen

12        of Chad, was admitted into the United States in June 2005 as

13        a nonimmigrant student. He ended his schooling (if any) by

14        September 2005, and in February 2006, following the

15        expiration of his nonimmigrant visa, Ahmat filed an

16        affirmative application for asylum, withholding of removal,

17        and relief under the Convention Against Torture (“CAT”).      He

18        alleged that he had been detained and beaten by police due

19        to his support for the Movement for Democracy and Justice in

20        Chad (“MJDT”).    Because Ahmat filed his application after

21        May 11, 2005, it was governed by the REAL ID Act of 2005,

22        Div. B of Pub. L. No. 109-13, 119 Stat. 302, 303 (2005)

23        (codified at 8 U.S.C. § 1158(b)(1)(B)(iii)).    See In re S-B-

24        24 I. & N. Dec. 42, 45 (B.I.A. 2006).

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


                                         2
 1   Ahmat’s application for relief after finding him not

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

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

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

 5   standards, concluding that the discrepancies the IJ

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

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

 8   agency may, considering the totality of the circumstances,

 9   base a credibility finding on demeanor, plausibility, and

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

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

12   Ahmat filed a petition for review in this Court.

13       In February 2010, the government moved to dismiss the

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

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

16   determination.    We denied the government’s motion without

17   prejudice, directing it to file a brief addressing whether

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

19   harmless error “in light of the greater discretion afforded

20   immigration judges by the REAL ID Act to assess

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

22   parties submitted a joint stipulation to remand to the BIA


                                     3
 1   for reconsideration under the REAL ID Act.*      We declined to

 2   remand, and directed the government to file a responsive

 3   brief.       That brief has been filed.

 4       In the review of an adverse credibility determination

 5   “an error does not require a remand if the remand would be

 6   pointless because it is clear that the agency would adhere

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

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

 9   2006).       In this case, remand would be pointless because the

10   REAL ID Act provides more, not less, support for the

11   agency’s adverse credibility determination.

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

13   was whipped while in detention) was inconsistent with his

14   asylum application (which did not mention that

15   mistreatment).       The BIA found that this inconsistency went

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

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


              *
             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 R. 12.3(b).
                                       4
 1   prior to the enactment of the REAL ID Act, this finding

 2   alone would likely have supported an adverse credibility

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

 4   Cir. 2005) (determination supported by inconsistency between

 5   applicant’s written statement and oral testimony regarding

 6   whether, during a particular incident on which his claim

 7   hinged, rival political party members had ransacked his home

 8   in his absence or had abused and threatened him personally).

 9       Moreover, the IJ found that Ahmat “ha[d] little

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

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

12   circumstances surrounding the death of Youssouf Togoimi (the

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

14   the record contradicted Ahmat’s testimony that no amnesty

15   had been granted to individuals involved in the overthrow of

16   the government.   The BIA concluded that it was “reasonable

17   for the Immigration Judge to expect [Ahmat] to know

18   something about the political party to which he purported he

19   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, the petition for review is

 5   DENIED.    As we have completed our review, any pending motion

 6   for a stay of removal in this petition is DISMISSED as moot.

 7   Any pending request for oral argument in this petition is

 8   DENIED in accordance with Federal Rule of Appellate

 9   Procedure 34(a)(2) and the Second Circuit Local Rule

10   34.1(b).

11                                FOR THE COURT:
12                                Catherine O’Hagan Wolfe, Clerk
13
14
15




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