NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0576n.06 No. 10-3228 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

ALTANTSE TSE G C HAGN AA; SUM IYA BEGZ LUVSAN , aka Sumiy a A. L uvsan, Petitioners-Appellants ,

v. ERIC H. HOL DER, JR., Attorney Gene ral, Respondent-

Appellee

. ) ) ) ) ) ) ) ) ) ) ON P ET ITION F OR REVIEW OF AN O RDER OF THE BOARD OF IMMIG RATION AP P EALS OP INION

BEFORE: COLE, ROGERS, Circuit Judges; SARGU S, District Judge * COLE, Circuit J ud g e . Pe ti ti o n e r s - A p p e ll a n ts A lt a n ts e ts e g Chag naa and Sumiy a A. L uvsan, husband and wife, petit i on this court for revie w of the Boa rd of I mmigra tion Appea ls’ order of

remova l. Petitioners claim the Boa rd err ed in aff

irming the I mmigra tion J udg e’s finding s that they

wer e not cre dible and that Chag naa was not elig ible for protec tion und er t h e C onvention Ag ainst Torture . Additionally , petitioners contend that the I mmigra tion Judge ’s sua sponte questioning of petitioners at their asy

lum hear ing violated their due proce ss rig hts. For the rea sons set forth below,

we DENY the petition for re view.

The Honora

ble Edmund A. Sarg us, J r., United States District Court for the Southern District * of Ohio, sitting by

desig nation.No. 10-3228

Chagnaa v. Holder

I. BACKG ROUND 1 A lt a n ts e ts e g Chag naa, the lead petitioner, and her husband, Sumiy a A. L uvsan (“ p e ti ti o n e r s ” )

are natives and citizens of Mong olia who enter ed the United States on November 12, 2004. On or about November 10, 2005, Ch agn aa fi led an application for asy lum and withholding of remova l under both the I mmigra tion and Nationality Act (“I NA” ) and the Convention Ag ainst Torture (“CAT” ) and included L uvsan in the application. Hea ring s wer e held via video confe renc e on May 2 14 and J uly 25, 2008; Chag naa and L uvsan testified from Cincinn at i , Ohi o with their attorney prese nt, and the I mmigra tion J udg e (“I J ”) and Mo n go lian interpre ter wer e located in York, Pennsy lvania. I n Mong olia, Chag naa w orked a s a per sonnel office r i n the Human Resources De partment of the Mong olian Ministry of Def ense and was eventua lly promoted to the rank of Captain. Chag naa testified that she is a supporter of democr acy , but her superiors in the Human Resource s Depa rtment

wer e communists. These political diffe renc es for m the basis of petitioners’ claims. I n her r ole as personne l office r, Chag naa assisted with the Ministry ’s proce ss for selec ting individuals to study in fore ign countries at the gover nment’s ex pense. Chag naa te stified that she wit nessed the selec tion

The fac t s s et forth in this section are taken from petitioners’ testimony

. Relevant 1 inconsistencies a

re note d. Be cause L uvsan was included only as a deriva tive to Chag naa’ s application and did not file 2 a separ ate application, he is not elig ible for withholding of remova l or relief under CAT. See Matter of A-K- , 24 I &N

Dec . 275, 279 (B I A 2007). - 2 -No. 10-3228

Chagnaa v. Holder proce ss unfairly favor communist applicants and that, during her tenure as perso nnel office r, she complained to four

of her superiors a

bout her c oncer

ns. Chag naa explained that she had suffe red p h y s i ca l violence as a result of her political differ ence s with g overnme nt official s . During the evening of October 22, 2003, four individuals visited petitioners’ home. L uvsan answere d the door and the visitors asked to speak to Chag naa. Chag naa rec og nized one of the individuals as a friend from high school and let the four individuals into the apar

tment. Once inside, they beg an talking and the conver sation turned into a disag ree ment

over politics. The visitors demande d that Chag naa answe r questions conce rning publications about illega l wea

pons sales. She explained that her position at the Ministry was not rela ted to such matters and asked them to le ave. The visitors did not le ave; they continued to pre ss Cha g naa for answe rs 3 and beg an to confr ont her phy sically

. L uvsan told the visitors they must leave or he would call the police. The four indivi duals exit ed the apar tment with Chag naa. Once in the hallway outside the apar tment, they hit Chag naa, causing her to fall down the stairs. Chag naa suffe red a head concussion and wrist injury from the fall. Chag naa testified that she believed communist g overnme nt officia ls

wer e behind the inc ident that night. Additionally , Chag naa and L uvsan have two children who still live in Mo n go l i a. After petitioners left Mong olia, their son was stopped while driving ; he was asked the wher eabouts of his pare nts and was thre atene d and choke d.

Howeve r, Chag naa explained to the I J that she was interviewe d by the authors of these 3 article s in order to publicly expose ill eg al g overnme nt activity

.

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Chagnaa v. Holder At their hear ing, the I J asked both Chag naa and L uvsan about their visa application proce ss. They explained that they stated in their visa applications that they wer e trave ling to the United States as tourists and L uvsan testified that they filed sepa

rate visa applica tions for their childre n beca use they wer e advised that whole families are unlikely to be g rante d visas. I n a written decision, the I J found both Chag naa and L uvsan not cre dible and denied their applications for asy lum, withholding of re moval, and prote ction under CAT. Petitioners appea led the I J ’s decision to the Boa rd of I mmigra

tion Appea ls (“B oard” or “B I A”)

. The Boa

rd did not adopt the I J ’s decision, but instead issued its own opinion, finding that the I J ’s cre dibilit y deter mination was not clea

rly err oneous and aff

irming the I J ’s decision. Petitioners timely

appea led. II. ANALYSIS A. Standard of

Review “B eca use the BI A did not summarily aff irm o r ad o pt the I J ’s rea soning and provided an explanation for its decision, we revie w the BI A’s decision as the final ag ency deter mination.” Y

oung Hee Kwak v. Holder , 607 F.3d 1140, 1143 (6th Cir. 2010) (interna l quotation marks omitted). We revie w the BI A’s decision, including cre dibilit y deter minations, under the defe rential substantial evidenc e standard. Khozhaynova v. Holder , 641 F.3d 187, 191 (6th Cir. 2011). Such deter minations

“ ‘ a r e c o n c lu s iv e u

n le ss any rea sonable adjudicator would be compelled to conclude to the c o n tr a r y . ’ ” Id. (quoting 8 U.S.C. § 1252(b)(4))

.

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Chagnaa v. Holder B. Adverse Cr edibil ity F ind ing Chag naa f

iled her a pplication for asy lum in November 2005 and is theref ore subjec t to the new standa

rd g overning

cre dibilit y

deter minations set forth in the R eal I D Act of 2005. See Amir

v. Gonzales , 467 F.3d 921, 925 n.4 (6th Cir. 2006). Under the Real I D Act, cre dibilit y deter minations are made by looking at the “totality of the circ umstances,” and include such fac tors

as: ‘[T] he demea

nor, candor , or responsivene ss o f t h e applicant [ ], the inhere nt plausibilit y of the applicant’ s [ ] acc ount, the consistency betwee n the applicant’ s [ ] written or oral statements

. . . , the i nterna l consistency of ea ch such statement, t he consistency of such statements with other evidenc e of re cord

. . . , and any i n acc urac ies or falsehoods in such statements, without reg ard to wheth er an inconsistency , inacc urac y , or falsehood g oes to the hear t of the applicant’ s claim, or any other re levant fa ctor.’ Khozhaynova , 641 F.3d at 193 (alter ation in orig inal) (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 I D Act provided a “stricter review” and abrog ated the law of this circ uit requiring adver se credibility require ments to be based “only on issues that went to the hear t of the applicants claim” (interna l quotation marks omitted)). “The same cre dibilit y standard applies to claims for asy lum, withholding of remova l, and for relief under th e t o rt ure convention.” El-Moussa , 569 F.3d at 256. Although “an adver se

cre dibilit y finding is aff

orded s u b stantial defe renc e, the finding must be supported by specific

rea sons.” Sylla v. INS , 388 F.3d 924, 926 ( 6th Cir. 2004). The Boa rd based its conclusion that petitioners wer e not cre dible on sever al inconsistencies and omissions in Chag naa’ s application. The first inconsistencies cited by the Boa rd conce rn details of the October 2003 incident at petitioners’ home. T h e Bo ar d noted that Chag naa stated in her - 5 -No. 10-3228

Chagnaa v. Holder written decla

ration that the classmate who visited her home in October 2003 was male, but testified
at t he hearing that the classmate was female. Additionally , Chag naa stated in her declar ation that she broke her le ft wrist, but at the hea ring she testified that it was he r rig ht wrist. Both at the hearing and on appe al, Chag naa c laims that the g ender and wr ist discrepanc ies

are the result of translat i o n er ro rs. Whil e it is possible that the translator mistakenly interpre ted Chag naa’ s decla

ration to state that her classmate was a “he” rathe r than a “she,” it seems less likely that the translator wrote “lef t” when Ch agn aa ’s d eclaration stated “rig ht,” or that both are mere translation err ors. Adding to the unlikeliness, Chag naa explained at the hear ing that pronouns in the Mong olian lang uag e are gen d er specific

. Moreove r, Chag naa and her attorney explained at the outset of t he hearing that they went over both her origina l Mong olian d ec l ar at i on and the Eng lish translation wit h a translator, and Chag naa was confident that all of t he information was accur ate. I n this respe ct, this case is distinguishable from Pergega v. Gonzales , 417 F.3d 623 (6th Cir. 2005). I n Pergega , we reje cted the BI A’s relianc e on an inconsistency that the petitioner claimed to be the result of a translation err or. See id. at 629-30. But in Pergega , the petitioner discovere d the err ors in his translated affidavit and informed the I J and the g overnme nt of t he error before his hear ing. Id. The go v er n m en t and the I J acc epted the petitioners’ pre- hear ing corr ection, but then subsequently ignor ed it. Id. Although Chag naa arg ues that “[ t ] h e t ra n slator’s err or can easily be verifie d by examining orig inal Mong olian decla ration,” (Pet’r Br

. 16), she neither verifie d it befor e the Boa rd, nor provided this Court with an additional t ra n s l at ion to verify it. Thus, both inconsistencies a

re pr oper ba ses supporting the B I A’s adve rse c redibility finding

.

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Chagnaa v. Holder The BI A also noted Chag naa and L uvsan’s conflicting acc ounts of what happe n ed wh en L uvsan asked the four individuals to leave the house the night of October 22, 2003. As noted by the BI A, Chag naa “ testified that she wa s ‘dra g g ed’ outside and hit , which caused her t o fall down the stairs, [but L uvsan] stated that he held the door open whil e h i s wife and the others exit ed the apar tment, and that they rema ined in the hallway outside the apar tment f or a ‘short period of time’ befor e his wife was assaulted.” (Admin. R. (“A R”) 4.) Petitioners do not asser t that these statements

are consistent. Rather, rely ing on this Court’s opinion in Koulibal y v. Mukase

y , 541 F.3d 613 (6th Cir. 2008), they con t en d t hat this inconsistency is mere ly “de minimi s in scope or chimeric al in nature ” and the ref

ore inadequa te to support an adve rse c redibility finding

. Id. at 622 (c iting Abbo

v. Gonzales , 150 F. App’x 524, 528 (6t h Cir. 2005) (per curia m)). Howeve r, at oral arg ument, petitioners conce ded that Koulibal y was decide d under the prior standard, not the new “stricter ” Real I D standard, see El-Moussa , 569 F.3d at 256, that applies to the cre dibilit y deter mination here

. Reg ardle ss, t h i s i n consistency is neither de minimi s nor chimeric al. Whether Chag naa was phy sically “dra g g ed” out of her home or her husband held the door open while his wife and her visitors exit ed calls into question the sever ity of the situation that evening and the events leading to Chag naa’ s injuries. The rema ining items relied on by the BI A to aff irm the I J ’s adver se cre dibilit y deter mination

conce rn fa cts provided by Chag naa a

t the hear ing but omitted from he r written de clar ation. “L ike aff irmative inconsistencie s, omissi ons may form the basis of an a dverse cre dibilit y deter mination, provided that they are substantially rela ted to the asy lum [or withholding] claim.” Liti v. Gonzales , 411 F.3d 631, 637 (6th Cir. 2 0 0 5 ). But omissions can only be relied on to support an adver se - 7 -No. 10-3228

Chagnaa v. Holder

cre dibilit y finding if they contra dict the test i m o n y given befor e the I J

. Id. at 637-38; Sinani v. Holder , No. 09-4176, 2011 WL 1496353 (6th Cir. April 20, 2011) (“[O]mi ssions in an application that do not direc tly contra dict an applicant’s subsequent testi mony befor e the I J may not form the basis of an adver se cre dibilit y finding .” (citing Liti , 411 F.3d at 637-38))

. This i s b ec au s e the “hea ring is intended to allow an asy lum seeke r to elabor ate on the claims made in his application.” Shkabari v. Gonzales , 427 F.3d 324, 330 ( 6th Cir. 2005). Th e Bo ar d found that the fac t that Chag naa failed to mention the publications reg arding illega l wea

pons sales in her written decla ration “sig nificantly detra ct[ed] from her cre dibilit y .” (AR 4.) Howeve r, this omission is satisfac torily explained by Chag naa’ s statement in her decla ration that she would “explain in full detail at the i nterview ,” ( i d

. at 300), and her subsequent explanation to the I J that she did not mention the publications about the wea pons sales in he r decla

ration beca

use she did not have the materia ls to provide to the I J at the time she submitt ed her written decla ration, ( see id. at 158-59). Moreove r, Chag naa’ s declaration provides that she and her husband wer e “discussing things” with the four visitors but then “g ot into an arg ument about differ ent sides of the parties.” (

Id. at 300.) Chag naa’ s testimony at the hear ing about the publications there fore does not “contr adict” her claims in her written statement, see Liti , 411 F.3d at 637-38, but rathe r is a proper elabor ation on what “thing s” Chag naa and the four individuals we re discussing, see Shkabari , 427 F.3d a t 330. Additionally , the B oard relied on Chag naa’ s omission from her decla ration of the f

act that individuals who wer e looking for Chag naa choked and threa tened h er son in Fe bruar y 2005. Although Chag naa’ s written statement states that she has two children, it does not addre ss whether - 8 -No. 10-3228

Chagnaa v. Holder they suffe red any harm in Mong olia, and there fore her subsequent testimony does not contra dict her written statement. Chag naa a rg ues that this omissi on is ex plained by the fact that she and L uvsan did n o t lear

n of t he incident until two y ear s later— after submitt ing their written st atements to the I J

. But in so arg uing, Chag naa highlight s an o t h er inconsistency noted by the BI A. Although Chag naa’ s testimony on this point is somewhat unclea r at times, she confirme d t o t h e I J t h at she lear ned of this incident in Fe bruar y 2005, wher eas L uvsan testified that they both found out in 2007. The Boa rd noted this discrepa

ncy and Chag naa does not claim that the Boa rd m i s i n t erpreted her testimony

. I n sum, althoug h the omissions cited by the BI A were insufficient to find petitioners not

cre dible, the ot her inconsistencies articulated by the BI A are supported by substantial evide n ce in the record. Be cause no “re asonable adjudicator would be compe lled to conclude to the c ontrary ,” Khozhaynova , 641 F.3d a t 191, we af firm the B oard’ s adver se cr edibility deter mination. C. Due P roce ss Violation Petitioners also claim t h at t h e I J ’s sua sponte questioning “excee d[ed] the bounds of impartiality require d of the I J as a neutra l finder of fac ts and show[ed] bias on the part of the arbiter of the law ,” in violation of their due proce ss rig hts. (Pet’r B r. 18.) The Fifth Ame ndment rig ht to due proce ss ex t en d s t o aliens in remova l proce eding s, which entitles them “to a full and fair hear ing.” Ndrecaj v. Mukase y , 522 F.3d 667, 673 (6th Cir. 2008) (quoting Vasha v. Gonzales , 410 F.3d 863, 872 (6th Cir. 2005)). Alleg ations of due pr ocess violations in immigra tion proce eding s

are revie wed de novo. Garza-More no v. Gonzales , 489 F.3d 239, 241 (6th Cir. 2007). “[R] eviewing

an alleg ed due proce ss violation is a two-step inquiry : first, whether there was a defe ct in the remova l - 9 -No. 10-3228

Chagnaa v. Holder proce eding ; and sec ond, whether the alien wa s prejudice d beca use of it.” Id. (quoting Vasha , 410 F.3d a t 872). Petitioners in i mmigra

tion proce eding s “ar e entitled to an unbiased arbiter who has not prejudg ed their claims.” Ahmed v. Gonzales , 398 F.3d 722, 725 (6th Cir. 2005). I mmigra tion judge s

are statut o ri l y empower ed to “administer oaths, rec eive evidenc e, and interrog ate, examine, and

cross-e x amine the alien and any witnesses.” 8 U.S.C. § 1229a(b) (1). Whil e immigra ti o n j u d ges have “broa d discretion in conducting their h ea ri n gs,” see Ahmed , 398 F.3d at 725, they must

car efully exercise such power to ensure that their positions as neutra l arbiter s do not take on that of advocates. As the B I A has pre viously explained: An I J must be impartial and must not attempt to establish proof to support the position of any party to the controve rsy ; once he does so he become s an advocate or a participant, thus cea sing t o function as an im partial trier of fact, and a hearing so conducte d is lacking in the fundame ntal fairne ss require d by due proc ess. Vasha , 410 F.3d a t 872-73 (quoting Matter of Lam , 14 I . & N . Dec . 168, 170 (B .I .A. 1972)). Petitioners claim that the I J violated these require ments by sua spon te q u e s ti o n in g the m about the proc ess they undertook to obta in nonimmig rant tourist visas. I n its decision, the Boa rd ag ree d with pe titioners tha t “ the I mmigra tion Judge should not have relied on the statements [petit ioners] made to consulate officia ls in order to obtain visas to flee the country ,” but reje cted petitioners claim that the I J was biased or prejudice d. (A R 5 n . 5 .) We ag ree with the Boa rd that the I J should not have relied on petitioners’ statements rela ted to their visa application proce ss. The proce ss by which individuals flee ing p er s ec ution enter this country seeking ref ug e should not later be used ag ainst them in their asy lum proce eding s. See Rai v. INS , 72 F. App’x 615, 616 (9th Cir. 2003) (explaining

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Chagnaa v. Holder that an alien’s use of false documents to obtain initial entry in order to flee perse cution “does not detra ct from his credibility ,” but ra ther “ can actually evidenc e a subjective fear of returning to his own country ”). P et i t i o n ers also contend that the I J ’s leng thy cross-e x amination of L uvsan and the overa l l tone and demea

nor of the I J ’s questions rende red him an advocate. Whether the I J ’s questioning of petitioners in this case c rossed the line to that of a n advocate is a close que stion. But we ne ed not decide whether

this constitut ed a defe ct i n the re moval proce eding beca use petitioners ha

ve fa iled to establish prejudice

. A due proce ss violation in remova l proce eding s results in prejudice wher e “the I J ’s conduct potentially aff

ecte d the outcome of the proce eding s.” Vasha , 410 F.3d at 875 (quoting Cano-Merida

v. INS , 311 F.3d 960, 965 (9th Cir. 2002)). Howeve r, the Boa rd did not adopt the I J ’s decision, instead issuing its own opinion a naly zing petitioners’ claim. I n doing so the Boa rd did not rely on any portion of petitioners’ testimony reg arding their visa application proce ss. Rather, the Boa rd detailed sever al inconsistencies in finding petitioners not cre dible. As discussed above, substantial evidenc e supports this deter mination and there fore the I J ’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

err or but deny

ing petitioner’s due proce ss claim because petitioner “fa iled to identify any specific prejudice ”). Acc ording ly , petitioners have failed to show the hear ing they re ce i v ed violated their due proce ss rig hts. - 11 -No. 10-3228

Chagnaa v. Holder D. CAT P rote ction L astly , Chag naa c laims the phy sical assa ult she suffe red constitutes torture entitli ng her to withholding of remova l unde r CAT. Under CAT, an individual may not be deporte d if “it is more likely than no t t h at [t he individual] would be tortured if remove d to the proposed country of

remova l.” 8 C.F.R. § 208.16(c) (2). Torture is “an extreme form of crue l a nd inhuman trea tment,” 8 C.F.R. § 1208.18(a) (2), and is “any act by which sever e pain or suffe ring , whether phy sical or mental, is intentionally inflic te d ” f o r s e v e r a l r e a s o n s , in c lu d in g p u n is h me n t, intimi dation or coer cion, “whe n such pain or suffe ring is inflicted by or at the instigati o n o f o r with the consent or acquie scenc e of a public officia l or other person acting in an officia l capa city ,” id. § 1208.18(a) (1). The Boa rd conclude d that Chag naa had not established elig ibilit y for protec tion under CAT beca use “[t] he rec ord does not contain independe nt evidenc e that would support [her] C AT claim when considere d without reg ard to her testimony that was proper ly found not cre dible.” (AR 5.) Chag naa neither contests this finding by the Boa rd, nor prese nts any additional evidenc e to support her claim. Thus, the B I A’s dec ision to deny her CAT c laim is supported by substantial evidence

. V. CONCLUSION For the rea sons set forth above, we DENY Chag naa’ s petition for revie w and AF F IRM the Boa rd’s de cision.

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