                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0576n.06

                                            No. 10-3228                                      FILED

                           UNITED STATES COURT OF APPEALS                              Aug 16, 2011
                                FOR THE SIXTH CIRCUIT                            LEONARD GREEN, Clerk


ALTANTSETSEG CHAGNAA; SUMIYA BEGZ                          )
LUVSAN, aka Sumiya A. Luvsan,                              )
                                                           )
       Petitioners-Appellants,                             )        ON PETITION FOR REVIEW
                                                           )        OF AN ORDER OF THE
v.                                                         )        BOARD OF IMMIGRATION
                                                           )        APPEALS
ERIC H. HOLDER, JR., Attorney General,                     )
                                                           )                               OPINION
       Respondent-Appellee.                                )


BEFORE:        COLE, ROGERS, Circuit Judges; SARGUS, District Judge*

       COLE, Circuit Judge. Petitioners-Appellants Altantsetseg Chagnaa and Sumiya A. Luvsan,

husband and wife, petition this court for review of the Board of Immigration Appeals’ order of

removal. Petitioners claim the Board erred in affirming the Immigration Judge’s findings that they

were not credible and that Chagnaa was not eligible for protection under the Convention Against

Torture. Additionally, petitioners contend that the Immigration Judge’s sua sponte questioning of

petitioners at their asylum hearing violated their due process rights. For the reasons set forth below,

we DENY the petition for review.




       *
        The Honorable Edmund A. Sargus, Jr., United States District Court for the Southern District
of Ohio, sitting by designation.
No. 10-3228
Chagnaa v. Holder



                                       I. BACKGROUND1

       Altantsetseg Chagnaa, the lead petitioner, and her husband, Sumiya A. Luvsan (“petitioners”)

are natives and citizens of Mongolia who entered the United States on November 12, 2004. On or

about November 10, 2005, Chagnaa filed an application for asylum and withholding of removal

under both the Immigration and Nationality Act (“INA”) and the Convention Against Torture

(“CAT”) and included Luvsan in the application.2 Hearings were held via video conference on May

14 and July 25, 2008; Chagnaa and Luvsan testified from Cincinnati, Ohio with their attorney

present, and the Immigration Judge (“IJ”) and Mongolian interpreter were located in York,

Pennsylvania.

       In Mongolia, Chagnaa worked as a personnel officer in the Human Resources Department

of the Mongolian Ministry of Defense and was eventually promoted to the rank of Captain. Chagnaa

testified that she is a supporter of democracy, but her superiors in the Human Resources Department

were communists. These political differences form the basis of petitioners’ claims. In her role as

personnel officer, Chagnaa assisted with the Ministry’s process for selecting individuals to study in

foreign countries at the government’s expense. Chagnaa testified that she witnessed the selection




       1
        The facts set forth in this section are taken from petitioners’ testimony.         Relevant
inconsistencies are noted.
       2
        Because Luvsan was included only as a derivative to Chagnaa’s application and did not file
a separate application, he is not eligible for withholding of removal or relief under CAT. See Matter
of A-K-, 24 I&N Dec. 275, 279 (BIA 2007).

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process unfairly favor communist applicants and that, during her tenure as personnel officer, she

complained to four of her superiors about her concerns.

       Chagnaa explained that she had suffered physical violence as a result of her political

differences with government officials. During the evening of October 22, 2003, four individuals

visited petitioners’ home. Luvsan answered the door and the visitors asked to speak to Chagnaa.

Chagnaa recognized one of the individuals as a friend from high school and let the four individuals

into the apartment. Once inside, they began talking and the conversation turned into a disagreement

over politics. The visitors demanded that Chagnaa answer questions concerning publications about

illegal weapons sales. She explained that her position at the Ministry was not related to such matters

and asked them to leave.3 The visitors did not leave; they continued to press Chagnaa for answers

and began to confront her physically. Luvsan told the visitors they must leave or he would call the

police. The four individuals exited the apartment with Chagnaa. Once in the hallway outside the

apartment, they hit Chagnaa, causing her to fall down the stairs. Chagnaa suffered a head concussion

and wrist injury from the fall. Chagnaa testified that she believed communist government officials

were behind the incident that night.

       Additionally, Chagnaa and Luvsan have two children who still live in Mongolia. After

petitioners left Mongolia, their son was stopped while driving; he was asked the whereabouts of his

parents and was threatened and choked.




       3
          However, Chagnaa explained to the IJ that she was interviewed by the authors of these
articles in order to publicly expose illegal government activity.

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        At their hearing, the IJ asked both Chagnaa and Luvsan about their visa application process.

They explained that they stated in their visa applications that they were traveling to the United States

as tourists and Luvsan testified that they filed separate visa applications for their children because

they were advised that whole families are unlikely to be granted visas. In a written decision, the IJ

found both Chagnaa and Luvsan not credible and denied their applications for asylum, withholding

of removal, and protection under CAT.

        Petitioners appealed the IJ’s decision to the Board of Immigration Appeals (“Board” or

“BIA”). The Board did not adopt the IJ’s decision, but instead issued its own opinion, finding that

the IJ’s credibility determination was not clearly erroneous and affirming the IJ’s decision.

Petitioners timely appealed.

                                           II. ANALYSIS

        A. Standard of Review

        “Because the BIA did not summarily affirm or adopt the IJ’s reasoning and provided an

explanation for its decision, we review the BIA’s decision as the final agency determination.” Young

Hee Kwak v. Holder, 607 F.3d 1140, 1143 (6th Cir. 2010) (internal quotation marks omitted). We

review the BIA’s decision, including credibility determinations, under the deferential substantial

evidence standard. Khozhaynova v. Holder, 641 F.3d 187, 191 (6th Cir. 2011). Such determinations

“‘are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’”

Id. (quoting 8 U.S.C. § 1252(b)(4)).




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       B. Adverse Credibility Finding

       Chagnaa filed her application for asylum in November 2005 and is therefore subject to the

new standard governing credibility determinations set forth in the Real ID Act of 2005. See Amir

v. Gonzales, 467 F.3d 921, 925 n.4 (6th Cir. 2006).           Under the Real ID Act, credibility

determinations are made by looking at the “totality of the circumstances,” and include such factors

as:

       ‘[T]he demeanor, candor, or responsiveness of the applicant [ ], the inherent
       plausibility of the applicant’s [ ] account, the consistency between the applicant’s [ ]
       written or oral statements . . . , the internal consistency of each such statement, the
       consistency of such statements with other evidence of record . . . , and any
       inaccuracies or falsehoods in such statements, without regard to whether an
       inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or
       any other relevant factor.’

Khozhaynova, 641 F.3d at 193 (alteration in original) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)); see

El-Moussa v. Holder, 569 F.3d 250, 256 (6th Cir. 2009) (explaining that the Real ID Act provided

a “stricter review” and abrogated the law of this circuit requiring adverse credibility requirements

to be based “only on issues that went to the heart of the applicants claim” (internal quotation marks

omitted)). “The same credibility standard applies to claims for asylum, withholding of removal, and

for relief under the torture convention.” El-Moussa, 569 F.3d at 256. Although “an adverse

credibility finding is afforded substantial deference, the finding must be supported by specific

reasons.” Sylla v. INS, 388 F.3d 924, 926 (6th Cir. 2004).

       The Board based its conclusion that petitioners were not credible on several inconsistencies

and omissions in Chagnaa’s application. The first inconsistencies cited by the Board concern details

of the October 2003 incident at petitioners’ home. The Board noted that Chagnaa stated in her

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written declaration that the classmate who visited her home in October 2003 was male, but testified

at the hearing that the classmate was female. Additionally, Chagnaa stated in her declaration that

she broke her left wrist, but at the hearing she testified that it was her right wrist.

        Both at the hearing and on appeal, Chagnaa claims that the gender and wrist discrepancies

are the result of translation errors. While it is possible that the translator mistakenly interpreted

Chagnaa’s declaration to state that her classmate was a “he” rather than a “she,” it seems less likely

that the translator wrote “left” when Chagnaa’s declaration stated “right,” or that both are mere

translation errors. Adding to the unlikeliness, Chagnaa explained at the hearing that pronouns in the

Mongolian language are gender specific. Moreover, Chagnaa and her attorney explained at the

outset of the hearing that they went over both her original Mongolian declaration and the English

translation with a translator, and Chagnaa was confident that all of the information was accurate.

In this respect, this case is distinguishable from Pergega v. Gonzales, 417 F.3d 623 (6th Cir. 2005).

In Pergega, we rejected the BIA’s reliance on an inconsistency that the petitioner claimed to be the

result of a translation error. See id. at 629-30. But in Pergega, the petitioner discovered the errors

in his translated affidavit and informed the IJ and the government of the error before his hearing.

Id.   The government and the IJ accepted the petitioners’ pre-hearing correction, but then

subsequently ignored it. Id. Although Chagnaa argues that “[t]he translator’s error can easily be

verified by examining original Mongolian declaration,” (Pet’r Br. 16), she neither verified it before

the Board, nor provided this Court with an additional translation to verify it.           Thus, both

inconsistencies are proper bases supporting the BIA’s adverse credibility finding.



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        The BIA also noted Chagnaa and Luvsan’s conflicting accounts of what happened when

Luvsan asked the four individuals to leave the house the night of October 22, 2003. As noted by the

BIA, Chagnaa “testified that she was ‘dragged’ outside and hit, which caused her to fall down the

stairs, [but Luvsan] stated that he held the door open while his wife and the others exited the

apartment, and that they remained in the hallway outside the apartment for a ‘short period of time’

before his wife was assaulted.” (Admin. R. (“AR”) 4.) Petitioners do not assert that these statements

are consistent. Rather, relying on this Court’s opinion in Koulibaly v. Mukasey, 541 F.3d 613 (6th

Cir. 2008), they contend that this inconsistency is merely “de minimis in scope or chimerical in

nature” and therefore inadequate to support an adverse credibility finding. Id. at 622 (citing Abbo

v. Gonzales, 150 F. App’x 524, 528 (6th Cir. 2005) (per curiam)). However, at oral argument,

petitioners conceded that Koulibaly was decided under the prior standard, not the new “stricter” Real

ID standard, see El-Moussa, 569 F.3d at 256, that applies to the credibility determination here.

Regardless, this inconsistency is neither de minimis nor chimerical. Whether Chagnaa was

physically “dragged” out of her home or her husband held the door open while his wife and her

visitors exited calls into question the severity of the situation that evening and the events leading to

Chagnaa’s injuries.

        The remaining items relied on by the BIA to affirm the IJ’s adverse credibility determination

concern facts provided by Chagnaa at the hearing but omitted from her written declaration. “Like

affirmative inconsistencies, omissions may form the basis of an adverse credibility determination,

provided that they are substantially related to the asylum [or withholding] claim.” Liti v. Gonzales,

411 F.3d 631, 637 (6th Cir. 2005). But omissions can only be relied on to support an adverse

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credibility finding if they contradict the testimony given before the IJ. Id. at 637-38; Sinani v.

Holder, No. 09-4176, 2011 WL 1496353 (6th Cir. April 20, 2011) (“[O]missions in an application

that do not directly contradict an applicant’s subsequent testimony before the IJ may not form the

basis of an adverse credibility finding.” (citing Liti, 411 F.3d at 637-38)). This is because the

“hearing is intended to allow an asylum seeker to elaborate on the claims made in his application.”

Shkabari v. Gonzales, 427 F.3d 324, 330 (6th Cir. 2005).

       The Board found that the fact that Chagnaa failed to mention the publications regarding

illegal weapons sales in her written declaration “significantly detract[ed] from her credibility.” (AR

4.) However, this omission is satisfactorily explained by Chagnaa’s statement in her declaration that

she would “explain in full detail at the interview,” (id. at 300), and her subsequent explanation to

the IJ that she did not mention the publications about the weapons sales in her declaration because

she did not have the materials to provide to the IJ at the time she submitted her written declaration,

(see id. at 158-59). Moreover, Chagnaa’s declaration provides that she and her husband were

“discussing things” with the four visitors but then “got into an argument about different sides of the

parties.” (Id. at 300.) Chagnaa’s testimony at the hearing about the publications therefore does not

“contradict” her claims in her written statement, see Liti, 411 F.3d at 637-38, but rather is a proper

elaboration on what “things” Chagnaa and the four individuals were discussing, see Shkabari, 427

F.3d at 330.

       Additionally, the Board relied on Chagnaa’s omission from her declaration of the fact that

individuals who were looking for Chagnaa choked and threatened her son in February 2005.

Although Chagnaa’s written statement states that she has two children, it does not address whether

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they suffered any harm in Mongolia, and therefore her subsequent testimony does not contradict her

written statement. Chagnaa argues that this omission is explained by the fact that she and Luvsan

did not learn of the incident until two years later—after submitting their written statements to the

IJ. But in so arguing, Chagnaa highlights another inconsistency noted by the BIA. Although

Chagnaa’s testimony on this point is somewhat unclear at times, she confirmed to the IJ that she

learned of this incident in February 2005, whereas Luvsan testified that they both found out in 2007.

The Board noted this discrepancy and Chagnaa does not claim that the Board misinterpreted her

testimony.

        In sum, although the omissions cited by the BIA were insufficient to find petitioners not

credible, the other inconsistencies articulated by the BIA are supported by substantial evidence in

the record. Because no “reasonable adjudicator would be compelled to conclude to the contrary,”

Khozhaynova, 641 F.3d at 191, we affirm the Board’s adverse credibility determination.

        C. Due Process Violation

        Petitioners also claim that the IJ’s sua sponte questioning “exceed[ed] the bounds of

impartiality required of the IJ as a neutral finder of facts and show[ed] bias on the part of the arbiter

of the law,” in violation of their due process rights. (Pet’r Br. 18.) The Fifth Amendment right to

due process extends to aliens in removal proceedings, which entitles them “to a full and fair

hearing.” Ndrecaj v. Mukasey, 522 F.3d 667, 673 (6th Cir. 2008) (quoting Vasha v. Gonzales, 410

F.3d 863, 872 (6th Cir. 2005)). Allegations of due process violations in immigration proceedings

are reviewed de novo. Garza-Moreno v. Gonzales, 489 F.3d 239, 241 (6th Cir. 2007). “[R]eviewing

an alleged due process violation is a two-step inquiry: first, whether there was a defect in the removal

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proceeding; and second, whether the alien was prejudiced because of it.” Id. (quoting Vasha, 410

F.3d at 872).

        Petitioners in immigration proceedings “are entitled to an unbiased arbiter who has not

prejudged their claims.” Ahmed v. Gonzales, 398 F.3d 722, 725 (6th Cir. 2005). Immigration judges

are statutorily empowered to “administer oaths, receive evidence, and interrogate, examine, and

cross-examine the alien and any witnesses.” 8 U.S.C. § 1229a(b)(1). While immigration judges

have “broad discretion in conducting their hearings,” see Ahmed, 398 F.3d at 725, they must

carefully exercise such power to ensure that their positions as neutral arbiters do not take on that of

advocates. As the BIA has previously explained:

        An IJ must be impartial and must not attempt to establish proof to support the
        position of any party to the controversy; once he does so he becomes an advocate or
        a participant, thus ceasing to function as an impartial trier of fact, and a hearing so
        conducted is lacking in the fundamental fairness required by due process.

Vasha, 410 F.3d at 872-73 (quoting Matter of Lam, 14 I. & N. Dec. 168, 170 (B.I.A. 1972)).

        Petitioners claim that the IJ violated these requirements by sua sponte questioning them about

the process they undertook to obtain nonimmigrant tourist visas. In its decision, the Board agreed

with petitioners that “the Immigration Judge should not have relied on the statements [petitioners]

made to consulate officials in order to obtain visas to flee the country,” but rejected petitioners claim

that the IJ was biased or prejudiced. (AR 5 n.5.) We agree with the Board that the IJ should not

have relied on petitioners’ statements related to their visa application process. The process by which

individuals fleeing persecution enter this country seeking refuge should not later be used against

them in their asylum proceedings. See Rai v. INS, 72 F. App’x 615, 616 (9th Cir. 2003) (explaining


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that an alien’s use of false documents to obtain initial entry in order to flee persecution “does not

detract from his credibility,” but rather “can actually evidence a subjective fear of returning to his

own country”).

       Petitioners also contend that the IJ’s lengthy cross-examination of Luvsan and the overall

tone and demeanor of the IJ’s questions rendered him an advocate. Whether the IJ’s questioning of

petitioners in this case crossed the line to that of an advocate is a close question. But we need not

decide whether this constituted a defect in the removal proceeding because petitioners have failed

to establish prejudice.

       A due process violation in removal proceedings results in prejudice where “the IJ’s conduct

potentially affected the outcome of the proceedings.” Vasha, 410 F.3d at 875 (quoting Cano-Merida

v. INS, 311 F.3d 960, 965 (9th Cir. 2002)). However, the Board did not adopt the IJ’s decision,

instead issuing its own opinion analyzing petitioners’ claim. In doing so the Board did not rely on

any portion of petitioners’ testimony regarding their visa application process. Rather, the Board

detailed several inconsistencies in finding petitioners not credible. As discussed above, substantial

evidence supports this determination and therefore the IJ’s questions did not prejudice petitioners.

See Vasha, 410 F.3d at 875; see also Castellano-Chacon v. INS, 341 F.3d 533, 553 (6th Cir. 2003)

(holding failure to allow petitioners opportunity to make opening and closing statements constituted

error but denying petitioner’s due process claim because petitioner “failed to identify any specific

prejudice”).

       Accordingly, petitioners have failed to show the hearing they received violated their due

process rights.

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        D. CAT Protection

        Lastly, Chagnaa claims the physical assault she suffered constitutes torture entitling her to

withholding of removal under CAT. Under CAT, an individual may not be deported if “it is more

likely than not that [the individual] would be tortured if removed to the proposed country of

removal.” 8 C.F.R. § 208.16(c)(2). Torture is “an extreme form of cruel and inhuman treatment,”

8 C.F.R. § 1208.18(a)(2), and is “any act by which severe pain or suffering, whether physical or

mental, is intentionally inflicted” for several reasons, including punishment, intimidation or coercion,

“when such pain or suffering is inflicted by or at the instigation of or with the consent or

acquiescence of a public official or other person acting in an official capacity,” id. § 1208.18(a)(1).

The Board concluded that Chagnaa had not established eligibility for protection under CAT because

“[t]he record does not contain independent evidence that would support [her] CAT claim when

considered without regard to her testimony that was properly found not credible.” (AR 5.) Chagnaa

neither contests this finding by the Board, nor presents any additional evidence to support her claim.

Thus, the BIA’s decision to deny her CAT claim is supported by substantial evidence.

                                         V. CONCLUSION

        For the reasons set forth above, we DENY Chagnaa’s petition for review and AFFIRM the

Board’s decision.




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