Consider this Petitioner’s Brief on Denial of Adjustment of Status for Misrepresentation. Sandhu v. Gonzales 126 Fed.Appx. 80 (C.A.3,2005). Here he was trying to adjust status based on asylum. It didn’t go well…
United States Court of Appeals,
Arjan Singh SANDHU, Petitioner,
John ASHCROFT, United States Attorney General, Respondent.
July 30, 2004.
Petition for Review of an Order of the Board of Immigration Appeals
Agency Nos. A71 484 745
Brief for Respondent
Peter D. Keisler, Assistant Attorney General, Civil Division, Emily Anne Radford, Assistant Director, Allen W. Hausman, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, P.O. Box 878, Ben Franklin Station, Washington, DC 20044-0878, Telephone: (202) 616-4873.
i TABLE OF CONTENTS
STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION AND TIMELINESS … 1
STATEMENT OF THE ISSUES PRESENTED … 4
STATEMENT OF THE CASE … 5
I. Nature of the Case And Course of Administrative Proceedings … 5
II. Statement of the Relevant Facts/Petitioner’s Asylum Claim … 10
III. The Administrative Decisions … 18
SUMMARY OF ARGUMENT … 21
ARGUMENT … 22
I. Scope and Standard of Review … 22
II. Statutory Framework and Burden of Proof … 24
III. The Findings That Petitioner Failed To Establish Eligibility For Asylum Through Credible Testimony and Offered False Testimony To Obtain An Immigration Benefit Are Supported By Substantial Evidence … 26
III. Petitioner Had A Fair Hearing In Which He Had An Opportunity To Be Heard And His Application For Adjustment Of Status Was Properly Pretermitted Because He Was Statutorily Ineligible For That Relief … 31
CONCLUSION … 36
CERTIFICATE PURSUANT TO FED. R. APP. P. 32(a)(7)(C)
RESPONDENT’S STATEMENT OF RELATED CASES
ii STATEMENT REGARDING ORAL ARGUMENT
CERTIFICATE OF SERVICE
iii TABLE OF AUTHORITIES
Abdille v. Ashcroft, 242 F.3d 477 (3rd Cir. 2001) … 24, 26
Abdulai v. Ashcroft, 239 F.3d 542 (3rd Cir.2001) … 22
Abdulrahman v. Ashcroft, 330 F.3d 587 (3rd Cir. 2003) … 35
Alleyne v. INS, 879 F.2d 1177 (3rd Cir. 1989) … 25
Antonio-Cruz v. INS, 147 F.3d 1129 (9th Cir. 1998) … 34
Arauz v. Rifkind, 845 F.2d 271 (11th Cir. 1988) … 32, 33
Beltran-Resendez v. INS, 207 F.3d 284 (5th Cir. 2000) … 3, 32
Board of Regents v. Roth, 408 U.S. 564 (1972) … 31
Calderon-Ontiveros v. INS, 809 F.2d 1050 (5th Cir. 1986) … 35
Catney v. INS, 178 F.3d 190 (3rd Cir. 1999) … 3
Chevron USA v. Natural Resources Defense Council, 467 U.S. 837 (1984) … 24
iv Chong v. District Director, INS, 264 F.3d 378 (3rd Cir. 2001) … 24, 32
Connecticut Board of Pardons v. Dumschat, 452 U.S. 458 (1981) … 31
Dia v. Ashcroft, 353 F.3d 228 (3rd Cir.) … 22, 23, 24, 26, 30
Ezeagwuna v. Ashcroft, 301 F.3d 116 (3rd Cir. 2002) … 24, 30
Fatin v. INS, 12 F.3d 1233 (3rd Cir. 1993) … 25
Fisher v. INS, 79 F.3d 955 (9th Cir. 1996) … 25
Gao v. Ashcroft, 338 F.3d 180 (3rd Cir. 2003) … 22, 23, 25, 30
INS v. Aquirre-Aquirre, 526 U.S. 415 (1999) … 24
INS v. Bagamasbad, 429 U.S. 24 (1976) … 32, 33
In Re J.P. Linaham, Inc., 138 F.2d 650 (2d Cir. 1943) … 35
INS v. Elias-Zacarias, 502 U.S. 478 1 (1992) … 24, 30
INS v. Cardoza-Fonseca, 480 U.S. at 421 … 26
INS v. Ventura, 537 U.S. 12, 123 S. Ct. 353 (2002) … 36
v Iliev v. INS, 127 F.3d 638 (7th Cir. 1997) … 35
Kleindienst v. Mandel, 408 U.S. 753 (1972) … 32
Kungys v. United States, 485 U.S. 759 (1988) … 29
Lal v. INS, 255 F.3d 998 (9th Cir.), amended on reh’g by, 268 F.3d 1148 (9th Cir. 2001) … 25
Larita-Martinez v. INS, 220 F.3d 1092 (9th Cir. 2000) … 24, 33
Lata v. INS, 204 F.3d 1241 (9th Cir. 2000) … 33
Mejia-Rodriguez v. INS, 178 F.3d 1139 (11th Cir. 1999) … 31
Montero-Hernandez v. Ashcroft, 277 F.3d 1137 (9th Cir. 2001) … 7
Morales v. INS, 208 F.3d 323 (1st Cir. 2000) … 34
Mulanga v. Ashcroft, 349 F.3d 123 (3rd Cir. 2003) … 23
Navas v. INS, 217 F.3d 646 (9th Cir. 2000) … 25
Opere v. U.S. I.N.S., 267 F.3d 10 (1st Cir. 2001) … 29
Perez-Lastor v. INS, 208 F.3d 773 (9th Cir. 2000) … 34
vi Perinpanathan v. INS, 310 F.3d 594 (8th Cir. 2002) … 25
Ramos v. INS, 246 F.3d 1264 (9th Cir. 2001) … 29
Rodriguez-Gutierrez v. INS, 59 F.3d 504 (5th Cir. 1995) … 29
Secaida-Rosales v. INS, 331 F.3d 297 (2d Cir.2003) … 23
Senathirajah v. INS, 157 F.3d 210 (3d Cir.1998) … 24
Vissian v. INS, 548 F.2d 325 (10th Cir. 1977) … 32
Xie v. Ashcroft, 359 F.3d 239 (3rd Cir. 2004) … 23, 24
The Immigration and Nationality Act of 1952, as amended:
Section 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A) … 25
Section 101(f)(6), 8 U.S.C. § 1101(f)(6) … 9
Section 106, 8 U.S.C. § 1105a … 2
Section 106(a), 8 U.S.C. § 1105a(a) … 2
vii Section 106(a)(4), 8 U.S.C. § 1105a(a)(4) … 30
Section 208(a), 8 U.S.C. § 1158(a) (2000) … 36
Section 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i) … 8, 9
Section 240(b), 8 U.S.C. § 1229a(b) … 33, 34
Section 240A(b)(1), 8 U.S.C. § 1229b(b)(1) … 7
Section 242(a)(2)(A), 8 U.S.C. § 1252(a)(2)(A) … 7
Section 242(b)(4)(B), 8 U.S.C. § 1252(b)(4)(B) … 23
Section 245, 8 U.S.C. § 1255 … 7, 31
Section 245(a), 8 U.S.C. § 1255(a) … 5
The Homeland Security Act of 2002 (“HSA”), Pub. L. No. 107-296, 116 Stat. 2135 (Nov. 25, 2002) … 8
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996):
Section 309(c) … 3
Section 309(c)(4) … 2, 3
Section 309(c)(4)(C) … 3
viii Section 309(c)(4)(D) … 3
The Extension of Stay In United States For Nurses Act of October 11, 1996, Pub. L. No. 104-302, 110 Stat. 3656, 3657:
Section 2(2) … 2
8 C.F.R. § 3.1(b)(2) (1999) … 2
8 C.F.R. § 3.2 (1998) … 7
8 C.F.R. § 3.8 (1998) … 7
8 C.F.R. § 3.10 (1999) … 2
8 C.F.R. § 3.14 (1999) … 2
8 C.F.R. § 3.38(a) (1999) … 2
8 C.F.R. § 208.13(a)(2002) … 26, 30
8 C.F.R. § 208.13(b)(1) … 25
8 C.F.R. § 1208.13(a) … 30
68 Fed. Reg. 10349 (March 5, 2003) (available at 2003 WL 724287) … 8
STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION AND TIMELINESS
This is an immigration case in which petitioner, Arjan Singh Sandhu (“Sandhu”), seeks review of a final order of the Board of Immigration Appeals (“Board” or “BIA”) denying his application for asylum based on a finding that he failed to meet his burden of proof with credible evidence. Also, the Board affirmed the immigration judge’s finding that Sandhu had provided false testimony in an attempt to obtain an immigration benefit and was, consequently, inadmissible to the United States and therefore statutorily ineligible to adjust his status. In addition, the Board found that, based on its review of the transcript, Sandhu was not deprived of 2 a fair hearing because the immigration judge questioned him to create a full and complete record.
The immigration judge had authority to conduct deportation and asylum proceedings pursuant to 8 C.F.R. §§ 3.10 and 3.14 (1999). The Board’s jurisdiction arose under 8 C.F.R. §§ 3.1(b)(2) and 3.38(a) (1999), granting it appellate jurisdiction over the decisions of immigration judges in deportation proceedings. On November 12, 1999, petitioner filed a timely notice of appeal to the BIA from an immigration judge’s October 19, 1999 decision, after the BIA granted Sandhu’s motion to remand. Certified Administrative Record (“AR”) 53-56. Petitioner had moved to remand to apply for adjustment of status while his appeal was pending from the immigration judge’s decision denying his asylum application.
Respondent agrees with the Petitioner’s statement that the Court has jurisdiction over this matter pursuant to section 106(a) of the INA, 8 U.S.C. § 1105a(a) (repealed 1996), as amended by the Transition Rules for judicial review established in section 309(c)(4) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), as amended by section 2(2) of the Extension of Stay In United States For Nurses Act of October 11, 1996, Pub. L. No. 104-302, 110 Stat. 3656, 3657. Section 106, as amended, provides the “sole and exclusive” procedure for the judicial review of final orders of deportation issued against aliens whose immigration proceeding were initiated before IIRIRA’s general effective date of April 1, 1997, and the final administrative order was issued by the Board after October 30, 1996. IIRIRA § 309(c); see also Catney v. INS, 178 F.3d 190, 192 (3rd Cir. 1999) (Section 309(c)(4) of IIRIRA provides for transitional judicial-review rules that apply to cases commenced before April 1, 1997, in which a final order of deportation was filed after October 30, 1996); Beltran-Resendez v. INS, 207 F.3d 284, 286 (5th Cir. 2000) (same).
Here, deportation proceedings were commenced with the filing in immigration court of an Order to Show Cause on October 16, 1995, AR 525, that is, prior to IIRIRA’s April 1, 1997 effective date, and the BIA’s decision was issued on July 22, 2003. Hence, judicial review is governed by the provisions of the Transition Rules. The petition for review from that order was filed on August 5, 2003, and is thus timely. IIRIRA § 309(c)(4)(C). The immigration judge concluded proceedings in Philadelphia, Pennsylvania, within this Circuit. AR 53. Consequently venue for this petition is properly in this Court. IIRIRA § 309(c)(4)(D).
STATEMENT OF THE ISSUES PRESENTED
Designation pursuant to Third Circuit Rule 28.1(a)(1) (indicate place in the proceedings at which each issue on appeal was raised, objected to, and ruled upon).
The immigration judge found that: Petitioner’s testimony was not credible, at AR 176,181 182; Petitioner attempted to “perpetrate a fraud upon th[e immigration] Court by claiming to be the individual in photographs of another person, at AR 180; Petitioner lied in an attempt mislead the immigration court and defraud the United States government to obtain asylum, i.e., a benefit under the INA, at AR 53, 182; Petitioner failed to show any past persecution or a likelihood of any present or future persecution, at AR 182; Petitioner is not a person of good moral character, at AR 183; Petitioner is ineligible to adjust his status to that of lawful permanent resident, at AR 55; and the immigration judge’s questioning of Petitioner did not deny him a fair hearing, at 55. The Board of Immigration Appeals ruled that the immigration judge’s adverse credibility finding was supported by material inconsistencies within Petitioner’s testimony and the record evidence, and the Petitioner’s explanations were unpersuasive, at AR 2. The BIA found that a review of the transcript does not support Petitioner’s contention that he did not receive a fair hearing, at AR 3. The BIA found that on remand, the immigration judge correctly inquired into the threshold matter of Petitioner’s statutory eligibility to adjust his status under INA § 245, and properly found that Petitioner was statutorily ineligible to adjust his status because offering false testimony to obtain an immigration benefit rendered him inadmissible, at AR 3.
STATEMENT OF THE CASE
This is a petition for review in which the petitioner, Arjan Singh Sandhu, a native and citizen of India, seeks review of an order of the BIA (1) denying his application for asylum, (2) affirming an immigration judge’s finding that he provided false evidence in an effort to obtain an immigration benefit, to wit, asylum, and (3) affirming the immigration judge’s decision to pretermit his application for adjustment of status because he is statutorily ineligible for that relief. Deportation proceedings were commenced against Sandhu with the filing in immigration court on April 18, 1995 of an Order to Show Cause (“OSC”) why he should not be deported for entering this country on April 18, 1991, at or near El Paso, Texas without being inspected by an immigration officer. AR 525-27. Although he later testified that he did not enter the United States on that date, AR 428, Sandhu, by his attorney, admitted the factual allegations of the OSC and conceded deportability as charged at a hearing before an immigration judge held on January 4, 1996. AR 357-58. He also indicated that he wished to apply for asylum. AR 358. A hearing was held on his asylum application on April 26, 1996, at which Sandhu was the sole witness. AR 360, 367. The immigration judge then delivered his oral decision in which he denied asylum. AR 322-37.
On May 1, 1996, Sandhu filed a timely Notice of Appeal with the BIA from the immigration judge’s decision. AR 317-20. While the appeal was pending, on November 1, 1996, Sandhu moved to remand his proceedings to the immigration judge to pursue adjustment of status based on the approval of a visa petition submitted for his benefit by Sandhu’s United States citizen son. AR 144-45 7 (motion), 147 (visa petition approval). By order issued on October 26, 1998, the BIA remanded the proceedings to the immigration judge.[FN1] AR 222.
FN1. The order recited that the former Immigration and Naturalization Service did not timely file an objection to remand and the motion comports with the critical requirements of 8 C.F.R. §§ 3.2 and 3.8 (1998). AR 222-23.
On January 14, 1999, at a hearing conducted following remand, the immigration judge noted that in its remand order, the BIA did not address Sandhu’s challenge to the finding that he had lied in his testimony, and it did not decide whether Sandhu possessed good moral character. AR 61-62. The immigration judge recognized that the issue before the immigration court on remand was whether Sandhu possessed statutory eligibility under 8 U.S.C. § 1255(a), to adjust his status, and if so, whether he merited a favorable exercise of discretion.[FN2] AR 62-63. The immigration judge gave Sandhu 30 days to file his application for adjustment and scheduled a hearing. AR 63.
FN2. Under section 245(a) of the INA, 8 U.S.C. § 1255(a), the Attorney General may, in his discretion, adjust the status of an alien who has an approved petition to that of a lawful permanent resident provided the alien (1) makes an application for such adjustment, (2) is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time the application is filed. In INA section 242(a)(2)(A), 8 U.S.C. § 1252(a)(2)(A), Congress provided that “no court shall have jurisdiction to review — (i) any judgment regarding the granting of relief under section . . . 1255 of this title[.]” See also, Montero-Hernandez v. Ashcroft, 277 F.3d 1137, 1144 (9th Cir. 2001) (holding that while the Court lacks jurisdiction to review denial of relief based on discretionary elements, it retains jurisdiction to review the BIA’s determination that aliens were statutorily ineligible for cancellation of removal as non-permanent residents under similar restriction on judicial review 8 U.S.C. § 1229b(b)(1)).
The former Immigration and Naturalization Service (“INS”),[FN3] moved to pretermit Sandhu’s application for adjustment of status on the ground that he is statutorily ineligible to adjust his status because he is inadmissible to the United States under 8 U.S.C. § 1182(a)(6)(C)(i), based on the immigration judge’s finding that Sandhu had offered false testimony at his asylum hearing.[FN4] AR 121-22.
FN3. On March 1, 2003, the functions of the former Immigration and Naturalization Service (“INS”) were transferred from the Department of Justice to three components (United States Immigration and Customs Enforcement, United States Customs and Border Protection, and United States Citizenship and Immigration Services) in the newly formed Department of Homeland Security (“DHS”). See generally Homeland Security Act of 2002 (“HSA”), Pub. L. No. 107-296, 116 Stat. 2135 (Nov. 25, 2002). Title 8 of the Code of Federal Regulations was reorganized and amended to reflect the resulting division of jurisdiction between DHS and the Executive Office for Immigration Review, which includes the immigration courts and BIA, and which remains an agency within the Department of Justice under the direction of the Attorney General. See 68 Fed. Reg. 10349 (March 5, 2003) (available at 2003 WL 724287).
FN4. Section 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i), provides:
Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure, or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this chapter is inadmissible.
At a hearing conducted on October 19, 1999, the immigration judge admitted, among other exhibits, Sandhu’s application for adjustment of status. AR 75, 133 (application). Noting his earlier finding that Sandhu had lied during his hearing in an effort to obtain asylum, the immigration judge ruled that Sandhu was inadmissible pursuant to INA section 212(a)(6)(C)(i), and therefore ineligible for adjustment, and that no waiver of inadmissibility was available. AR 78. He found unpersuasive Sandhu’s argument that by granting the motion to reopen, the BIA found that Sandhu established that he is statutorily eligible for adjustment. AR 55, 79. Consequently, the immigration judge denied Sandhu’s application for adjustment of status. AR 51 (order), 53-57 (oral decision).
Sandhu filed a timely appeal with the BIA challenging both the denial of asylum and adjustment of status. AR 45. On July 22, 2003, the BIA issued a decision in which it stated that it agreed with the immigration judge’s adverse credibility finding, and also his finding that Sandhu had given false testimony in an attempt to obtain a benefit under the INA. AR 2. The BIA stated that material inconsistencies within Sandhu’s testimony and the evidence submitted in support of the asylum application support the adverse credibility finding. AR 2-3 (giving examples). The BIA found Sandhu ineligible for asylum and adjustment, citing section 101(f)(6) of the INA, 8 U.S.C. § 1101(f)(6).[FN5] AR Therefore, the BIA dismissed the appeal. AR 3.
FN5. Section 101(f)(6) of the INA, 8 U.S.C. § 1101(f)(6), provides:
No person shall be regarded as, or found to be, a person of good moral character who, during the period, for which good moral character is required to be established, or was — (6) one who has given false testimony for the purpose of obtaining any benefits under this chapter[.]
Sandhu offered his own testimony, a written asylum application and statement, as well as photographs and documentary exhibits, to establish his identity, religious affiliation and political beliefs, in order to meet his burden of proof for asylum, i.e., that he suffered past persecution or has a well-founded fear of future persecution if he returns to India, on account of his Sikh religion and political activities as a member of the All India Sikh Student Federation (“AISSF”). Sandhu’s claim rests on injuries he allegedly suffered at the hands of the police as a consequence of activities as a member of the AISSF in three separate incidents.
Sandhu testified that in March 1988, while he was a student at the Sikh Missionary College, he joined the AISSF because it propagated his Sikh religion and conducted baptism ceremonies.[FN6] AR 373, 375. He said he was an active in recruiting members by distributing forms and booklets and putting up posters, fund-raising, and arranging processions.[FN7] AR 91. He first claimed that he was given the position of “stage secretary” for his district on May 5, 1989, AR 382, 398, but later he testified it was on April 4, 1990. AR 383. As stage secretary, he delivered lectures about 20 to 25 times. Id.
FN6. Sandhu testified that in 1991 the AISSF became a political organization seeking to create a Sikh-ruled nation to be called Khalistan in place of India’s Punjab province. AR 375-77.
FN7. Sandhu testified that he was unfamiliar with the distinction between processions and demonstrations. AR 430.
The May 5, 1989 incident.
In his asylum application statement, Sandhu related that he and 10 others were arrested by the police while they were leading a peaceful procession, and they were taken to the Amritsar police station and beaten. AR 473. After three days, they were moved to their local police station at Bhadso, and then released after Sandhu’s father and the village council paid a bribe of 10,000 rupees to the police. Id.
When Sandhu testified about the same incident, he said that he was arrested at a meeting held to protest the actions of the police a year earlier during Operation Black Thunder, during which 25,000 Sikhs were arrested and 500 were killed by the police. AR 385. Sandhu related that the May 5, 1989 event was attended by about 450 to 500 people, and it took place five months after he joined the AISSF. Since under that calculation, Sandhu’s AISSF membership would have begun in January 1989, he was asked to explain his testimony that he became an AISSF member in March 1988. AR 391. He replied that he actually received his membership documents or December 25, 1988, and thus his membership began at that time.[FN8] AR 392. He failed to explain why the affidavit of Sandhu’s father states that Sandhu was “involved with AISSF, as an active member since March, 1988.” AR 456.
FN8. When Sandhu was asked to reconcile his conflicting testimony regarding when he became a member of AISSF, the immigration judge observed for the record that Sandhu was laughing. The immigration judge asked him:
Sandhu testified that the police first surrounded the gathering, and then seized him as he stood close to the stage, as well as ten others. During cross-examination, Sandhu testified that the police action occurred after the meeting had been going on for two hours, and while the audience was listening to a lecturer. AR 429, 431. According to Sandhu, the police officers beat him with sticks, handcuffed him and took him to the Amritsar police station, where he was mistreated six times during three days in custody and no charges were placed against him and he was not presented before a judge. AR 394-95, 406. While he was detained the police allegedly tied his hands behind him, put wooden logs between his knees and beat him on his feet, burned his hands with lit candles, pulled his hair and beard, and deprived him of food for two days. AR 394-395. He said that the reason the police gave for mistreating him was that he was “shouting slogans for Khalistan.” AR 394. Sandhu said he was transferred after three days to a local jail and then released after a bribe was paid. AR 396. With home remedies, Sandhu recovered in a month and a half and resumed his activities. AR 397.
The April 13, 1990 incident
According to Sandhu’s written asylum statement, on April 13, 1990, he was pulled from the stage while he was addressing a Sikh audience about the atrocities being committed by the government against the Sikhs. AR 474. He was taken to the police station, beaten so severely that he became unconscious, and harassed, humiliated and insulted by the police. AR 474; see also AR 456 (father’s affidavit).
In his testimony, Sandhu related that the April 13, 1990 incident took place at the Gourdwa a Nohra Sahib, and followed a Bhog ceremony, which consisted of a three day, non-stop reading of the Guru Gransahib, followed by prayers; a baptismal ceremony was also to take place. AR 399-401. It was morning and about 150 people were present. AR 401, 402. According to Sandhu, police inspector Bingh Singh, accompanied by 25 policeman, entered the hall, mounted the stage, cursed Sandhu and used abusive language to him, and started beating him. AR 401. The police arrested Sandhu and a second AISSF member and took them to the Badson police station, where Sandhu was beaten and forced him to lie naked on ice.[FN9] Sandhu said that he was released after seven days after the police were paid a bribe.[FN10] AR 404.
FN9. Without explaing the source of his information, Sandhu testified that the police had purchased the ice from a market, a factory and shops. AR 404.
FN10. While Sandhu testified that his father and his uncle were also beaten and were clubbed by the police, neither the asylum statement nor his father’s affidavit make such a claim. See AR 456. His father’s affidavit does state that he was harassed, beaten and arrested by the police, but does not identify when, where or how that occurred, nor does it mention Sandhu’s uncle. Id.
Contrary to Sandhu’s description of the event in his asylum statement that he was addressing the audience when he was accosted, he testified that at that time he was on stage stirring holy water with a sword-like implement in preparation for the baptism ceremony. AR 432. Sandhu related that he had spent about one hour and 15 minutes preparing the holy water (adding sugar cubes to the water and reciting prayers) when, suddenly, the police entered, immediately came on stage and began beating him; he beating continued for 30 to 35 minutes. AR 433, 435. Asked on cross-examination to reconcile the two versions — whether he was giving a lecture or stirring the holy water — Sandhu first replied that he was going to deliver the lecture after he called upon those seeking to be baptized to come forward and conducting the baptism ceremony. AR 434-35. Then he said that he had already given the lecture before he stirred the holy water. Id. Next, he said that there were two lectures, one before and one after the baptism. Id. Finally, Sandhu testified that he was stirring the holy water when he was arrested. AR 436. Also, he changed his earlier testimony to say that he spent 20 minutes — not an hour and 15 minutes — preparing the holy water. Id.
The December 25, 1990 incident
According to Sandhu’s asylum statement, when the police failed to locate him during periodic police raids on his home, they raided his entire village on December 25, 1990, and arrested two AISSF workers. AR 474. Two days later, the police issued a statement that both men had been killed while attempting to flee from police custody. Id. Sandhu testified that his family feared the same thing could happen to him and, on December 31, 1990, they urged him to leave; he left for Delhi the next day. Id. Sandhu testified that he remained in Delhi until June 25, 1991, when he returned to Punjab for 15 days, during which time he stayed with relatives to avoid the police finding him. Id. When asked how he was able to recall the dates so exactly, Sandhu replied: “I am an educated person. I know. I can remember.” AR 410.
Petitioner’s arrival in the United States
Sandhu’s asylum statement recites that he left India for Pakistan, and then traveled to the United States via Panama. AR 474. He admitted entering this country with the aid of smugglers, AR 414-15, and obtaining fraudulent work authorization documents. Id. Also, he testified that he has been in this country since January 20, 1992. AR 370, 411, 412.
When Sandhu testified that he had returned to Punjab from Delhi on June 25, 1991, the immigration judge brought to his attention that Sandhu had admitted that he had unlawfully entered the United States on or about April 18, 1991, at or near El Paso, Texas, in admitting the truth of the factual allegation of the Order To Show Cause. AR 410; see also AR 357-58 (admitting allegations of OSC), 525 (OSC, number 3.). Sandhu maintained that he did not enter on April 18, 1991, even after being confronted with Form I-213, which shows his date of entry as April 18, 1991, and it was explained to him that the form was prepared by an INS agent who had interviewed Sandhu. AR 127 (I-213), 411. Sandhu was also confronted with Form I-765 (Application For Employment Authorization), which Sandhu admitted bears his signature. AR 125 (I-765, space 12, showing date of last entry into U.S. as “Apr. 18, 1991”) was completed by the smugglers and which bears Sandhu’s signature. AR 414 (Sandhu acknowledging his signature on I-765). Sandhu testified that the I-765 was fill out by the smugglers who brought him into the United States, but he could not explain how April 18, 1991 came to be on both forms.[FN11] AR 428.
FN11. The immigration judge found that Sandhu failed to provide an explanation how the same date came to appear on forms filled out by different individuals, the I-213 by an INS officer, and the I-765 by the smugglers in conjunction with obtaining for Sandhu fraudulent work authorization, unless Sandhu was the source of the information for both. AR 417-18.
Petitioner’s documentary exhibits
Sandhu submitted affidavits from his father, AR 456, and the “sarpanch” of his village, AR 454, and a letter allegedly written by the district president of AISSF. AR 458. He testified that these exhibits were hand carried by a friend from India to Canada and then mailed from there to Sandhu in this country because Sandhu feared that the Indian government would intercept and confiscate the letter from the mail going directly to the United States based on his speculation that the Indian government “might be suspicious because of [his] name, . . . and they might know that [he] was a member of federation.”[FN12] AR 438.
FN12. Petitioner did not produce any evidence that the government of India actually confiscates mail addressed to Indians in the United States, or has interest or the capacity to examine the mail leaving the country.
Sandhu also offered several photocopies of photographs that he testified include him in the image.[FN13] AR 452-53. The immigration judge noted for the record that the person purportedly Sandhu in each photograph has a full beard and mustache, and is wearing a turban, while Sandhu is now clean shaven and has a stylish, i.e., short, haircut. AR 420-21. As a consequence of the alteration in appearance, the immigration judge explained that it was very difficult for him to determine whether the person in the photocopies was indeed Sandhu. AR 422. Therefore, in two photographs that the immigration judge found could be Sandhu, the immigration judge compared specific facial features, the nose and eyebrows, as shown in the photographs with Sandhu before him in the courtroom. AR 423. The immigration judge, addressing Sandhu, described his observations as follows:
FN13. An “x” appears over the head of the person that Sandhu claims is him.
[T]he nose structure is different between the photographs and your nose structure, and the eyebrows are different. Yours are curved all the way around your eye, or around the eye socket, and these go straight across the top of the eye socket.
AR 424. The immigration judge found Sandhu was not the individual in the photographs. Id.
III. The Administrative Decisions
At the conclusion of the asylum hearing, the immigration judge delivered his oral decision. He questioned if Sandhu were truly a religious Sikh, as he maintains, he would have shaved his muchache and beard and cut his hair, contrary to one of the five bases of the religion, in order to get a better paying job. AR 326. The immigration judge provided a detailed summary of the testimony, as well as noting internal inconsistencies, contradictions and changes in testimony which, he found severely and critically undermined Sandhu’s testimony. AR 326-30. The immigration judge focused on the discrepancy between Sandhu’s testimony regarding when he entered the United States and the documentary exhibits, the I-213 and I-765, which was signed by Sandhu. AR 332.
Addressing the photocopies of photographs offered by Sandhu to prove that he is a religious Sikh, the immigration judge found that although several lack sufficient detail to determine whether the likeness is indeed Sandhu, two of them contain enough detail to permit a finding, based on a comparison of the facial features of noses and eyebrows, that the person shown is not Sandhu. AR 333.
The immigration judge found that Sandhu’s testimony was “totally, totally incredible.” AR 336. Further, he found that Sandhu lied to the immigration court and utilized “photographs which in no way resemble him,” in an attempt to defraud the immigration court in an effort to obtain an immigration benefit. Consequently, the immigration judge concluded, Sandhu failed to establish that he suffered any past persecution or that there is any likelihood at all for any present of future 20 persecution. Id. The immigration judge denied Sandhu’s application for asylum. AR 337.
In a separate decision following remand, issued on October 19, 1999, the immigration judge found Sandhu statutorily ineligible for adjustment of status, because he was inadmissible based on having given false testimony in an effort to obtain asylum, and no waiver was available. AR 54. In addition, the immigration judge rejected Sandhu’s argument that he was denied a fair hearing because the immigration judge had acted as a trial attorney by questioning Sandhu during his direct and cross-examination. AR 55. The immigration judge explained that he acted in furtherance of his duty to create a complete record. He commented that in order to render its decision, the immigration court needs all of the facts and “wants to know exactly what’s going on in the case.” AR 56. Because Sandhu was excludable, and no waiver is available, his application for adjustment was denied. AR 57.
On July 22, 2003, the BIA issued a order dismissing Sandhu’s appeal. It found that material inconsistencies within Sandhu’s testimony, his failure to provide a consistent and believable account of the events surrounding his April 1990 arrest, and his failure to provide consistent testimony regarding the date of his arrival in the United States, supported the adverse credibility finding. AR 2-3. The BIA rejected Sandhu’s claim that he was denied a fair hearing. AR 3.
In addition, the BIA agreed with the immigration judge’s finding that Sandhu had offered false testimony to obtain an immigration benefit. AR 3. The BIA noted, however, that an adverse credibility finding does not equate with offering false testimony. Id. In this case, however, the immigration judge’s finding of false testimony was supported by the evidence. Id. The BIA ruled that Sandhu was ineligible to adjust his status because he was inadmissible. As a consequence, it ordered that the application for adjustment of status be denied.
SUMMARY OF ARGUMENT
The Court will uphold the finding that the applicant failed to establish eligibility for asylum through credible testimony if it is supported by substantial and probative evidence on the record considered as a whole, and will only reverse the BIA if there is evidence so compelling that no reasonable factfinder could conclude as the BIA did. Here, the unexplained contradictions and inconsistencies within Petitioner’s testimony, and with his written asylum statement and the exhibits, support the adverse credibility finding, as well as the finding that Petitioner offered false testimony to obtain an immigration benefit, to wit, asylum.
On remand, the immigration judge gave Petitioner an opportunity to be heard on his application for adjustment of status to that of lawful permanent resident, but the immigration judge properly pretermitted an evidentiary hearing because no evidence could overcome Petitioner’s statutory ineligibility for relief where he was found to have offered false testimony to obtain an immigration benefit that rendered him ineligible for admission.
Petitioner could not demonstrate a denial of due process because he does not have a liberty or property interest in being admitted to the United States as a lawful permanent resident, or to a discretionary remedy, such as adjustment of status, which Congress has extended to certain qualified aliens it deems to merit such relief, but no to those who are inadmissible or who lack good moral character. Further, Petitioner was not denied a fair hearing where the immigration judge conducted questioning in order to create a fair and complete administrative record and reach an informed decision. Consequently, the petition for review should be denied.
An agency is required to put forth a sufficiently reasoned opinion to enable the Court conduct meaningful review. Dia v. Ashcroft, 353 F.3d 228, 243 (3rd Cir.) (en banc). The Court normally reviews the decision of the BIA. Gao v. Ashcroft, 338 F.3d 180, 183 (3rd Cir. 2003) (court reviews immigration judge’s decision where BIA defers to or adopts it); Abdulai v. Ashcroft, 239 F.3d 542, 549 n. 2 (3rd Cir.2001) (same). Where, however, the BIA has substantially relied on the immigration judge’s decision, including an adverse credibility finding, the Court examines both the BIA’a and the immigration judge’s decisions. Xie v. Ashcroft, 359 F.3d 239, 242 (3rd Cir. 2004) (“In this case, the BIA both adopted the IJ’s adverse credibility determination and discussed some, but not all, of the underlying bases for the IJ’s adverse credibility determination.”).
The Court will uphold the finding that the applicant failed to establish eligibility for asylum if it is supported by substantial and probative evidence on the record considered as a whole, and will only reverse the BIA if there is evidence so compelling that no reasonable factfinder could conclude as the BIA did. Dia, 353 F.3d at 247; Mulanga v. Ashcroft, 349 F.3d 123, 132-34 (3rd Cir. 2003). An adverse credibility determination is considered a finding of fact. See Gao, 299 F.3d at 272; see also Mulanga, 349 F.3d at 131-32; Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (“Generally, courts have treated credibility questions in deportation proceedings is questions of fact….”). As such, it is “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
The Court reviews an immigration judge’s adverse credibility finding for substantial evidence. Xie, 359 F.3d at 243; Dia, 353 F.3d at 247; Gao, 338 F.3d at 183. Substantial evidence is more than a mere scintilla and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Senathirajah v. INS, 157 F.3d 210, 216 (3d Cir. 1998) (quotation marks omitted). Under this deferential standard, “the BIA’s finding must be upheld unless the evidence not only supports a contrary conclusion, but compels it.” Dia, 353 F.3d at 248-49; Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3rd Cir. 2001) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 & n. 1 (1992)). Unexplained inconsistencies, which are material, go to the heart of the claim, and are not minor, will support an adverse credibility finding. Xie, 359 F.3d at 243 (citations omitted).
Sandhu claims that he was denied an opportunity to be heard when the immigration judge pretermitted his application for adjustment of status, Petitioner’s Brief (“Pet. Br.”) 24, and a fair hearing because the immigration judge repeatedly interrupted him to ask questions. Pet. Br. 26-29. The Court reviews such due process claims de novo. Chong v. District Director, INS, 264 F.3d 378, 386 (3rd Cir. 2001) (citing Larita-Martinez v. INS, 220 F.3d 1092, 1095 (9th Cir. 2000)).
The Court reviews questions of law involving the INA de novo, but with deference to the Board’s interpretation. INS v. Aquirre-Aquirre, 526 U.S. 415, 424 (1999) (citing Chevron USA v. Natural Resources Defense Council, 467 U.S. 837, 842 (1984).
An alien is eligible for a discretionary grant of asylum under section 208 of the INA if he can show that he qualifies as a “refugee.” 25 Ezeagwuna v. Ashcroft, 301 F.3d 116, 125-26 (3rd Cir. 2002); Fatin v. INS, 12 F.3d 1233, 1238 (3rd Cir. 1993). A “refugee” is an alien who is “unable or unwilling” to return to his country of origin “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); Fatin, 12 F.3d at 1238.
Past persecution is established by showing an incident or incidents that rise to the level of persecution, that it was “on account of” one of the statutory grounds, and was committed by the government or forces the government was unable or unwilling to control. Gao, 299 F.3d at 272 (citing Navas v. INS, 217 F.3d 646, 655 (9th Cir. 2000). If past persecution is established, then the asylum applicant is presumed to have a well-founded fear of persecution. See 8 C.F.R. § 208.13(b)(1); Lal v. INS, 255 F.3d 998, 1002 (9th Cir.), amended on reh’g by, 268 F.3d 1148 (9th Cir. 2001). This presumption may be overcome by establishing by a preponderance of the evidence that “conditions ‘have changed to such an extent that the applicant no longer has a well-founded fear of being persecuted if he or she were to return.’ ” Lal, 255 F.3d at 1002 (citation omitted); accord Perinpanathan v. INS, 310 F.3d 594, 598 (8th Cir. 2002).
A “well-founded fear” of persecution has both subjective and objective components. Alleyne v. INS, 879 F.2d 1177, 1178 (3rd Cir. 1989); Fisher v. INS, 79 F.3d 955, 960 (9th Cir. 1996) (en banc). The subjective component requires credible testimony showing the applicant has a genuine fear of persecution. Id. To satisfy the objective component, the applicant has the burden of demonstrating by credible, direct, and specific evidence that his fear of persecution is objectively reasonable. Abdille, 242 F.3rd at 482; see 8 C.F.R. § 208.13(a)(2002). An applicant’s uncorroborated testimony by itself is sufficient to meet the burden of proof provided that the testimony is credible. Dia, 353 F.3d at 247. Once it is established that the applicant is a refugee, the Attorney General must decide whether the refugee “is entitled to asylum as a matter of discretion.” See INS v. Cardoza-Fonseca, 480 U.S. at 421 n.5 (“the Attorney General is not required to grant asylum to everyone who meets the definition of refugee”).
In arriving at his decision to deny Sandhu’s asylum application, the immigration judge considered his testimony, and the exhibits, including the two affidavits, a letter written on AISSF stationery, and two photocopies of snapshots that had sufficient clarity to determine whether the image was Sandhu. AR 331-337. The immigration judge acknowledged that the “credibility of the [asylum applicant] is of extreme importance in assessing the alien’s claim.” AR 336. The immigration judge explained that in finding Sandhu’s testimony was not credible, he considered “the lack of rationality, the lack of consistency, [and] the lack of inherent persuasiveness[.]” Id. The BIA affirmed this finding, citing “material inconsistencies within [Sandhu]’s testimony and the evidence submitted in support of the asylum application.” AR 2. As examples, the BIA pointed to Sandhu’s own internally conflicting statements concerning when he became a member of AISSF (March 1988 versus December 1988), and the inconsistency between that testimony and the statement in Sandhu’s father’s affidavit that Sandhu became a member in March 1988, id., as well as inconsistencies in Sandhu’s account of his second arrest by the police in April 1990, and the date of his arrival and his subsequent whereabouts and activities in the United States. AR 3.
In addition, the immigration judge identified inconsistencies and contradictions regarding when Sandhu became the AISSF district secretary, AR 327 (May 5, 1989 versus April 4, 1990), what he was doing when he was arrested the first time on May 9, 1989, AR 328 (leading a procession versus standing close to the stage), and what he was doing when he was arrested the second time on April 13, 1990, AR 329 (addressing a gathering concerning atrocities committed by the Indian government versus stirring holy water).
The immigration judge found Sandhu’s claim that he feared the Indian government would confiscate mail sent to him in the United States by picking it out from the mail leaving the country was implausible, as was his explanation for how 28 the same allegedly incorrect date of arrival in the United States came to be on separate forms completed by others who had no contact with each other and no other source of information except for Sandhu himself. AR 331-32. Finally, the immigration judge concluded that the person shown in photocopies of snapshots that Sandhu testified portrayed his image was not in fact Sandhu, based upon his own visual comparison of the facial features shown in the snapshots with those of Sandhu as the immigration judge observed him in the courtroom. AR 333.
Sandhu contends that the inconsistencies and contradictions should be discounted because they are merely “minor inconsistencies” or result from memory lapses and do not advance or go to the heart of the asylum claim, and reveal nothing about his fear of persecution. Pet. Br. 19-21. The Court should reject this contention because the contradictions and inconsistencies go to crucial aspects of the claim, that is, Sandhu’s identity, his commitment to his alleged religious and political affiliations, which are central to his claim of persecution, and the events upon which the claim rests. In addition, Petitioner’s assertion that he misunderstood the language or didn’t recall dates correctly is in direct contradiction of his response when asked about the accuracy of his testimony that he could recall events accurately because he is “an educated person.” AR 410.
Further, the BIA recognized that merely finding that Sandhu did not offer credible testimony did not establish that he gave false testimony in order to obtain 29 an immigration benefit. AR 3. In that regard, the BIA does not disagree with Sandhu, see Pet. Br. 23, and it is consistent with the decision in Rodriguez-Gutierrez v. INS, 59 F.3d 504, 507-508 (5th Cir. 1995), which Sandhu cited. Pet. Br. 23. In Rodriguez-Gutierrez, the Courted explained that “[f]alse testimony means knowingly giving false information with the intent to deceive.” Id. See also Opere v. U.S. I.N.S., 267 F.3d 10, 13 (1st Cir. 2001); Ramos v. INS, 246 F.3d 1264, 1266 (9th Cir. 2001) (citing Kungys v. United States, 485 U.S. 759, 780 (1988). Here, the record provides ample support for the immigration judge’s finding, affirmed by the BIA, that Sandhu lied in his testimony in an effort to obtain asylum.
For his part, Sandhu maintains that “[w]hen an inconsistency was raised, [he] provided satisfactory and honest answers.” Pet. Br. 24. That claim is belied by: (1) his protestation of ignorance regarding how April 18, 1991 appeared as his arrival date in the United States on the I-213 form, AR 127, and the I-765 form, AR 125, that Sandhu admitted bears his signature, AR 427-28; (2) the implausibility of his explanation about the Indian government locating and confiscating mail addressed to him, AR 438; (3) his change in testimony regarding how long it took him to prepare the holy water for the baptismal ceremony from one hour and 15 minutes to only 20 minutes when the latter better suited his story, compare AR 433 with 436; and (4) his shifting testimony regarding what he was doing prior to being arrested on April 13, 1990 (giving a lecture versus stirring holy water); and (5) continuing to 30 insist that it was his image in the photocopied snapshots when a simple visual comparison convinced the immigration judge otherwise. AR 422-23. The record contains substantial evidence supporting that finding, and it certainly does not compel a contrary finding.[FN14] Dia, 353 F.3d at 248-49; Elias-Zacarias, 502 U.S. at 481.
FN14. The immigration judge’s observation of Sandhu laughing, and then denying it to the immigration judge, is demeanor evidence from which his intent to deceive and obtain a benefit through false pretenses may be inferred.
The burden of proof to establish his eligibility for asylum rested on Sandhu. Ezeagwuna, 301 F.3d at 125-26; 8 C.F.R. § 1208.13(a). An alien may meet his burden with his own testimony provided it is credible. Dia, 353 F.3d at 247; Gao, 299 F.3d at 272 (“Aliens have the burden of supporting their asylum claims through credible testimony. Testimony, by itself, is sufficient to meet this burden, if ‘credible.’ ” (quoting 8 C.F.R. § 208.13(a)) (citation omitted)). Because Sandhu’s testimony was not credible, he failed to meet his burden of proof. The immigration judge found, and the BIA affirmed, that Sandhu’s testimony was not credible. Sandhu’s documentary evidence was of doubtful credibility as well. On appeal, he has attempted to buttress his case by citation to extra-record material, submitted as part of his Appendix. See Pet. Br. 18. Because this Court’s review is limited to the administrative record, INA § 106(a)(4), 8 U.S.C. § 1105a(a)(4) (repealed 1996), that material may not be considered.
31 III. Petitioner Had A Fair Hearing In Which He Had An Opportunity To Be Heard And His Application For Adjustment Of Status Was Properly Pretermitted Because He Was Statutorily Ineligible For That Relief.
Petitioner presents two due process arguments. First he contends that he was denied an opportunity to be heard because, on remand to the immigration court, the immigration judge pretermitted his application for adjustment of status and precluded him from having a “full hearing on the merits of the adjustment of status application.” Pet. Br. 24-26. This argument is without merit. As a preliminary matter, it must be noted that adjustment of status may be conferred in the discretion of the Attorney General. INA § 245(a), 8 U.S.C. § 1255(a); see n.2, supra. A due process violation must be predicated on the deprivation of interests encompassed by the Due Process Clause’s protection of liberty and property. Board of Regents v. Roth, 408 U.S. 564, 569 (1972). To have a protectable property or liberty interest in a benefit, “a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. Roth, 408 U.S. at 577. Since the failure to receive relief that is purely discretionary in nature does not amount to a liberty interest, Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 465 (1981), there can be no violation of due process. Mejia-Rodriguez v. INS, 178 F.3d 1139, 1146 (11th Cir. 1999).
32 Further, even where a protected interest exists, due process requires no more than an individualized determination of the facts of the case. Chong, 264 F.3d at 387. Where the applicant is ineligible for the relief sought, or would otherwise not be granted relief, the Attorney General, or his delegate, may pretermit consideration of the application. INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.”); Beltran-Resendez, 207 F.3d at 287 (upholding pretermission of alien’s efforts to introduce evidence where issue was precluded by statute); Arauz v. Rifkind, 845 F.2d 271, 275 (11th Cir. 1988) (pretermission of application upheld where no amount of evidence would negate statutory ineligibility); Vissian v. INS, 548 F.2d 325, 326-27 (10th Cir. 1977) (upholding pretermission of eligibility determination where Attorney General would not have granted relief in any event).
Here, the immigration judge, on remand, conducted a hearing at which he identified the finding from the asylum hearing that established Sandhu’s inadmissibility, and consequently, his statutory ineligibility to adjust his status because he was not admissible and and therefore not eligible to adjust his status to that on alien admitted for lawful permanent residence in the United States.
There is no constitutional right to admission to the United States. Kleindienst v. Mandel, 408 U.S. 753, 765-66 (1972). Congress has extended this privilege to 33 aliens who meet various requirements set forth throughout the INA. Adjustment of status is likewise a discretionary act, and permits eligible aliens to be admitted as resident immigrants without the inconvenience of traveling abroad to obtain a visa. Sandhu failed to meet the requirements, and since no amount of evidence that Sandhu could offer would change that circumstance, a full evidentiary hearing was not warranted, and pretermission of his application was reasonable. See Bagamasbad, 429 U.S. at 25; Arauz, 845 F.2d at 275.
Sandhu also maintains that he was denied a fair hearing by the immigration judge’s “repeated interruptions and interjections[,]” and by taking “control of direct and cross examination.” Pet. Br. 26-27. In his oral decision the immigration judge explained that he conducted extensive examination of Sandhu in order “to create a complete record. The [immigration c]ourt wants all of the facts in front of it whether or not those facts are distasteful to either the Government of the [petitioner], whether or not they are injurious to the Government’s case or to the [petitioner]’s case, the Court wants to know exactly what is going on in the case.” AR 56. See also INA § 240(b), 8 U.S.C. § 1229a(b) (authorizing the immigration judge to “interrogate, examine, and cross-examine the alien and any witnesses”);
To prevail on a due process claim, an alien must show that he suffered “substantial prejudice” from the alleged due process violation. Larita-Martinez v. INS, 220 F.3d 1092, 1095 (9th Cir. 2000) (quoting 34 Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000)) (internal quotation marks omitted). “An alien suffers prejudice if the violation potentially . . . affect [s] the outcome of the proceedings.” Perez-Lastor v. INS, 208 F.3d 773, 780 (9th Cir. 2000) (citations and internal quotation marks omitted). Although noting that the immigration judge made 30 interruptions in less than 60 pages of direct testimony, Sandhu makes no effort to demonstrate that he suffered any prejudice. In lieu of any such showing, Sandhu’s brief merely disputes the immigration judge’s inferences drawn from the testimony, and he asserts that once the immigration judge challenged his photographic exhibits, he “would have offered evidence to establish the authenticity of the photos[.]” Pet. Br. 29. Sandhu’s counsel did not move to continue the hearing to present such evidence, or to submit it before the record closed. Hence, the matter has been waived.
The immigration judge acted well within the scope of his authority by examining Sandhu to create an informed and complete record. See INA § 240(b), 8 U.S.C. § 1229a(b) (authorizing the immigration judge to “interrogate, examine, and cross-examine the alien and any witnesses”). No due process violation is engendered if that questioning becomes vigorous or even impatient. See Antonio-Cruz v. INS, 147 F.3d 1129, 1131 (9th Cir. 1998) (holding that immigration judge’s “ ‘harsh’ questioning,” amounting to “ ‘the lion’s share of the cross-examination,’ ” did not violate due process); see also 35 Morales v. INS, 208 F.3d 323, 27 (1st Cir. 2000) (“The record reflects that, although the [immigration judge] may have been somewhat impatient, he did not deny Morales a full and fair hearing on his asylum application.”); Iliev v. INS, 127 F.3d 638, 643 (7th Cir. 1997) (“Although the Immigration Judge may have been ‘brusque,’ and perhaps could have achieved his objective in a more courteous manner, it is difficult to say on the cold record that his approach warrants criticism; certainly, he did not deny a fair trial.”) (footnote omitted); Calderon-Ontiveros v. INS, 809 F.2d 1050, 1052 (5th Cir. 1986) (holding that immigration judge did not violate Due Process Clause by “vigorous [ly] questioning” petitioner).
It is not improper for an IJ to question the logic of the facts supporting an asylum claim. That type of evaluation is integral to weighing of testimony an evidence that is typically required to make a credibility determination. Abdulrahman v. Ashcroft, 330 F.3d 587, 596 (3rd Cir. 2003) citing In Re J.P. Linaham, Inc., 138 F.2d 650, 654 (2d Cir. 1943), (“Impartiality is not gullibility. Disinterestedness does not mean child-like innocence. If the judge did not form judgments of the actors in those court-house dramas called trials, he could never render decisions.”). The BIA stated that it had reviewed the transcript and found that it does not support Sandhu’s contention that he was denied a fair hearing. This 36 Court should affirm that finding.[FN15]
FN15. Petitioner requests that the Court grant his asylum claim. Pet. Br. 29. The Supreme Court stated that generally, a court of appeals should remand “to an agency for decision of a matter that statutes place primarily in agency hands.” INS v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 355-56 (2002). Here, the Attorney General is vested with the authority to grant asylum. Section 208(a) of the INA, 8 U.S.C. § 1158(a) (2000). In the event the Court finds merit in petitioner’s arguments, in should reject petitioner’s request and remand to the BIA for further proceedings.
For the foregoing reasons, the decision of the BIA should be affirmed and the petition for review should be denied.
38 RESPONDENT’S STATEMENT OF RELATED CASES
Pursuant to Third Cir. R. 28.1(a)(2), the undersigned counsel for respondent states that he is unaware of any other case by these petitioners that has been before this Court previously, or of any other case or proceeding completed, now pending, or about to be presented, in this or any other court or agency, that is related in that it involves the same parties, or presents the same issues arising out of the specific and unique facts presented in petitioner’s application for relief.
STATEMENT REGARDING ORAL ARGUMENT
Respondent does not believe that oral argument will materially assist the Court in adjudicating the issues raised in this petition. However, if the Court orders that argument be conducted, respondent wishes to be heard.
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