765 F.3d 96 (1st Cir. 2014), 13-2254, Ahmed v. Holder

Docket Nº:13-2254
Citation:765 F.3d 96
Opinion Judge:SELYA, Circuit Judge.
Party Name:MOHAMED OSMAN AHMED, Petitioner, v. ERIC H. HOLDER, JR., ATTORNEY GENERAL, Respondent
Attorney:Robert Huntington on brief for petitioner. Stuart F. Delery, Assistant Attorney General, Civil Division, Blair T. O'Connor, Assistant Director, and Joseph D. Hardy, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, on brief for respondent.
Judge Panel:Before Thompson, Selya and Lipez, Circuit Judges.
Case Date:September 02, 2014
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 96

765 F.3d 96 (1st Cir. 2014)

MOHAMED OSMAN AHMED, Petitioner,

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL, Respondent

No. 13-2254

United States Court of Appeals, First Circuit

September 2, 2014

Page 97

Robert Huntington on brief for petitioner.

Stuart F. Delery, Assistant Attorney General, Civil Division, Blair T. O'Connor, Assistant Director, and Joseph D. Hardy, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, on brief for respondent.

Before Thompson, Selya and Lipez, Circuit Judges.

OPINION

Page 98

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

SELYA, Circuit Judge.

Over half a century ago, an impresario named Ralph Edwards shot to fame as the host of a radio show called " Truth or Consequences." The lesson of the show was that playing fast and loose with the truth will often backfire and produce undesirable results. That lesson has continuing relevance today.

In this case, the immigration judge (IJ) and the Board of Immigration Appeals (BIA), prompted by what they plausibly perceived to be the petitioner's pernicious pattern of prevarication, refused to grant relief from removal. After careful consideration of the agency's findings and the consequences to the petitioner that flow from those findings, we discern no basis for a favorable exercise of our power of judicial review.

The background facts are easily assembled. The petitioner, Mohamed Osman Ahmed, is a Somalian national who originally entered the United States in 1983 on a student visa and overstayed. Seven years later, he applied for asylum, professing a fear of persecution rooted in his alleged association with two groups to which the reigning Somali dictator Mohamed Siad Barre was opposed: the Somali Salvation Democratic Front (SSDF) and the Majerteen clan. The application languished.

Five years later, the petitioner traveled to Canada and applied for asylum there under a different name (Suudi Mahad Ishaq) and on a somewhat different basis: a fear of persecution because the United Somali Congress (U.S.C.) purportedly wanted to eliminate members of the Majerteen clan. This petition met an abrupt end in 1996, when the petitioner returned to the United States.

United States Border Patrol agents in Vermont discovered the petitioner in the

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company of several naturalized Canadians of Somali origin who had recently been denied entry into the United States from Canada. The petitioner and his travel companions gave inconsistent answers about their agenda, raising agents' suspicions. Consultation with Canadian immigration authorities revealed the existence of the Canadian asylum application that the petitioner had filed under his nom de guerre. Canadian authorities summarily canceled the petitioner's Canadian asylum application as fraudulently filed.

We fast-forward to 2000, when the federal government charged the petitioner with removability as an alien present without having been admitted or paroled after inspection. See 8 U.S.C. § 1182(a)(6)(A)(i). The petitioner responded in June of 2001 by filing a new application requesting asylum (his first asylum application having been deemed abandoned when he decamped for Canada), withholding of removal, and protection under the United Nations Convention Against Torture (CAT). Along with this new application came a new justification: fear of persecution in Somalia at the hands of al-Shabaab, a militant group known for violent attacks on Sufi Muslims.

There followed a long road of procedural twists and turns, which we need not chart (except to note that the petitioner, through counsel, conceded in written pleadings that he was present in the United States without having been admitted or paroled after inspection). At the end of this road, the IJ denied all the petitioner's requests for relief and ordered him removed to Somalia. The IJ premised his decision on an adverse credibility determination, explaining that the petitioner had been guilty of " considerable inconsistencies, omissions, and untruths."

The BIA affirmed in all respects (including affirmance of the IJ's refusal to allow the petitioner to amend his pleadings). This petition for judicial review followed.

Before us, the petitioner argues that the agency (i) erroneously denied him relief from removal, (ii) improperly refused to let him amend his pleadings, and (iii) abridged his due process rights. We address these arguments sequentially.

We begin with the petitioner's flagship contention: that both the IJ and the BIA applied the wrong legal standard in denying his application for asylum. Specifically, he asserts that the agency made its adverse credibility determination by applying the relevant provision of the REAL ID Act of 2005, see 8 U.S.C. § 1158(b)(1)(B)(ii)-(iii), whereas it should have applied preexisting law. We review this claim of legal error de novo. See Jianli Chen v. Holder, 703 F.3d 17, 21 (1st Cir. 2012). Because the BIA wrote separately while also approving the IJ's decision, our review is directed at both of those decisions. See id.

A brief historical preface helps to focus the petitioner's argument. For many years, adverse credibility determinations in immigration cases were governed by the so-called " heart of the matter" rule. See, e.g., Seng v. Holder, 584 F.3d 13, 18 & n.2 (1st Cir. 2009); Bebri v. Mukasey, 545 F.3d 47, 50 & n.1 (1st Cir. 2008). In 2005, however, Congress enacted the REAL ID Act. See Pub. L. No. 109-13, § 101(a)(3), 119 Stat. 231, 303. That Act eased the requirements for making adverse credibility determinations, but the new standard was meant to apply only prospectively to applications for asylum filed after May 11, 2005. See Bebri, 545 F.3d at 50 n.1.

In this case, all parties acknowledge that the operative application for asylum was filed prior to May 11, 2005. Thus, the earlier, more alien-friendly " heart of the matter" rule applies. See id. Apparently

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cognizant of this chronology, the IJ and the BIA both disclaimed reliance on the new credibility standard limned in the REAL ID Act.

The petitioner nonetheless asserts that this disclaimer comprised nothing more than empty words and that the agency relied sub silentio on the REAL ID Act's credibility standard. In his view, this reliance can be inferred from the way in which the agency used lies concerning subsidiary matters as a basis for finding a lack of veracity. That approach, he says, is consistent with the REAL ID Act but not with the " heart of the matter" rule.

This is magical thinking. Under the " heart of the matter" rule, an adverse credibility determination can be based on a wide range of discrepancies or inconsistencies as long as those discrepancies or inconsistencies go to the heart of the alien's claim. See Qin v. Ashcroft, 360 F.3d 302, 307-08 (1st Cir. 2004) (explaining that false testimony concerning matters central to an asylum claim may call into question a petitioner's overall credibility). Moreover, it is well accepted that discrepancies and inconsistencies go to the heart of the matter whenever they " pertain to facts central to the merits of the alien's claims, not merely to peripheral or trivial matters." Zheng v. Gonzales, 464 F.3d 60, 63 (1st Cir. 2006).

Those are exactly the types of discrepancies and inconsistencies that the IJ noted here. For example, the IJ found that the petitioner's pseudonymous Canadian asylum application cast his true identity into doubt -- and there can be no question but that an alien's identity lies at the heart of an asylum claim. See 8 U.S.C. § 1158(d)(5)(A)(i); Khan v. Mukasey, 541 F.3d 55, 58 (1st Cir. 2008). Other discrepancies noted by the IJ related to the presence or absence of...

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