United States v. 2005-03-10 | 03-70775 | KASNECOVIC VGONZALES | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 FERIDA KASNECOVIC,
Petitioner, No. 03-70775
v. Agency No.
 A76-667-668ALBERTO GONZALES,* Attorney
General, OPINION
Respondent. 
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
September 8, 2004—San Francisco
Filed March 11, 2005
Before: Betty B. Fletcher, Edward Leavy, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Leavy
*Alberto Gonzales is substituted for his predecessor, John Ashcroft, as
Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
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COUNSEL
Robert B. Jobe and Nicole Simon, Law Office of Robert B.
Jobe, San Francisco, California, for the petitioner.
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John S. Hogan, United States Department of Justice, Office of
Immigration Litigation, Civil Division, Washington, D.C., for
the respondent.
OPINION
LEAVY, Circuit Judge:
Ferida Kasnecovic, a native and citizen of Yugoslavia, peti-
tions for review of a final order of the Board of Immigration
Appeals (BIA) denying her applications for asylum, withhold-
ing of removal, and relief under the United Nations Conven-
tion Against Torture (CAT). An Immigration Judge (IJ) found
that Kasnecovic’s asylum application was untimely and that
Kasnecovic did not establish extraordinary circumstances to
excuse that untimeliness. See 8 U.S.C. § 1158(a)(2)(B), (D)
(2000). As an alternative finding, the IJ denied Kasnecovic’s
asylum claim on the merits, based on an adverse credibility
determination. Finally, the IJ denied Kasnecovic’s petitions
for withholding of removal and CAT relief.
We have jurisdiction over the petition under 8 U.S.C.
§ 1252(a)(1). Because substantial evidence supports the IJ’s
adverse credibility determination, we deny the petition as to
the withholding of removal and CAT claims and dismiss the
petition as to the asylum claim.
STANDARD OF REVIEW
We review the BIA’s decision to determine whether it is
“supported by reasonable, substantial, and probative evidence
on the record considered as a whole.” INS v. Elias-Zacarias,
502 U.S. 478, 481 (1992) (citation omitted). Where the BIA
affirms an IJ’s order without opinion, we review the IJ’s order
as the final agency action. Kebede v. Ashcroft, 366 F.3d 808,
809 (9th Cir. 2004). Factual findings underlying the IJ’s order
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are reviewed for substantial evidence. Gormley v. Ashcroft,
364 F.3d 1172, 1176 (9th Cir. 2004).
FACTS AND PRIOR PROCEEDINGS
Kasnecovic entered the United States on December 22,
1998. At the time of entry she told the Immigration and Natu-
ralization Service (INS)1 interviewer that she was born in
Montenegro, Yugoslavia, and gave a specific location, includ-
ing a zip code equivalent, as her permanent residence in Mon-
tenegro. She also told the interviewer that she had two
relatives in the United States, an aunt, Osman Kalivori, who
lived in Staten Island, New York, and a sister, Dija Kasne-
covic, living in Queens, New York.
In December 1999, Kasnecovic applied for Temporary Pro-
tected Status (TPS), stating that she was born in Kosovo,
Yugoslavia, and was a national of Kosovo Province. The INS
denied the application because Kasnecovic failed to establish
that she was a national of Kosovo Province, Yugoslavia.
Kasnecovic applied for asylum and withholding of removal
on April 20, 2000, sixteen months after she entered the United
States. In her original application, she stated that she was born
in Kosovo and resided there. She claimed she had suffered
past persecution in Kosovo as an ethnic Albanian. In her
amended application, filed after her application for TPS status
was denied, Kasnecovic stated she was born in Montenegro,
Yugoslavia, but had lived in Kosovo since she was five. She
then submitted her birth certificate, which had been issued in
January 1999 (less than a month after she entered the United
States) and which showed that she was born in Bar, Montene-
gro. When asked why she had not earlier submitted the birth
1The INS was abolished March 1, 2003, and its functions transferred to
the Department of Homeland Security. See Homeland Security Act of
2002, Pub. L. 107-296, § 471, 116 Stat. 2135, 2204-05; 6 U.S.C.A. § 542
note (West Supp. 2004).
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certificate, she explained that the person who had retrieved it
had forgotten to mail it to her. She also stated that she had no
relatives in the United States, and that Osman Kalivori was
not a relative, but a person she had met in New York, who
had helped her and provided a place to stay.
The IJ found that Kasnecovic’s asylum application was
untimely and that Kasnecovic had not established extraordi-
nary circumstances to excuse that untimeliness. See 8 U.S.C.
§ 1158(a)(2)(B), (D) (2000).
Alternatively, the IJ denied Kasnecovic’s asylum claim on
the merits based on an adverse credibility finding. The IJ
found that Kasnecovic’s testimony regarding her nationality
was material and inconsistent and that her explanation for the
timing of her submission of her birth certificate was insuffi-
cient. Based on the adverse credibility finding, the IJ denied
Kasnecovic’s application for withholding of removal. The IJ
also found that there was no credible or competent evidence
that it was more likely than not that Kasnecovic “would be
subject to torture within Montenegro or Kosovo should she be
returned” and denied relief under CAT. Kasnecovic appealed,
and the BIA summarily affirmed without opinion pursuant to
its streamlining regulations. See 8 C.F.R. § 1003.1(e)(4)
(2004).
ANALYSIS
[1] The IJ rejected Kasnecovic’s asylum claim on alterna-
tive grounds — one we have jurisdiction to review (adverse
credibility) and the other we do not (untimeliness). See 8
U.S.C. §§ 1158(a)(2)(B),(D), 1158(a)(3), & 1252(a)(2)(B)(ii).
Because the BIA summarily affirmed without opinion, we
face a situation similar to that considered by this court in
Lanza v. Ashcroft, 389 F.3d 917 (9th Cir. 2004). There the IJ
also denied the asylum application on alternate grounds, one
of which we had jurisdiction to review (the merits) and the
other unreviewable (untimeliness), and the BIA summarily
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affirmed. We stated “[d]ue process requires us to either
review the merits of [petitioner’s] asylum application or
remand to the BIA for clarification of the grounds for its deci-
sion.” Id. at 919. Because of the general presumption against
federal jurisdiction, we remanded for clarification of the
grounds for denial of the asylum application. Id. at 932.
Lanza also sought review of the denial of her claims for
withholding of removal and CAT relief. We reached the mer-
its of these claims because the BIA’s affirmance without
opinion did not “impact our ability to review” the claims. Id.
[2] Were there no difference between the proceedings in
Lanza and those in the present appeal, we would remand the
asylum claim to the BIA for clarification. However, the pos-
ture of this appeal differs from Lanza in one significant
respect. Here, we must review the merits of the IJ’s adverse
credibility determination during our review of the denial of
Kasnecovic’s withholding of removal and CAT claims, issues
over which our jurisdiction is “clear.” Id. Because, as Kasne-
covic concedes, her eligibility for asylum “rests entirely on
the issue of her credibility,” we also necessarily decide the
merits of her asylum claim in the course of deciding the with-
holding and CAT claims. As a consequence, in this appeal the
jurisprudential considerations that weighed in favor of a
remand to the BIA in Lanza do not apply. If the BIA on
remand informed us that its decision regarding asylum rested
on the timeliness ground we would lack jurisdiction over any
further petition for review; if the BIA informed us that it
rested on affirmance of the IJ’s merits decision, we would
have to deny any petition for review, as we have already
decided the only pertinent merits question.
[3] Substantial evidence supports the IJ’s adverse credibil-
ity determination. Kasnecovic’s statements regarding her
nationality and residence in her interviews, TPS application,
asylum applications and testimony before the IJ were incon-
sistent and material. Her explanation for these inconsistencies
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was inadequate. In addition, her testimony regarding her rela-
tives or lack of relatives in the United States was conflicting.
Kasnecovic’s latter testimony regarding Kalivori cannot be
reconciled with her reference to Kalivori at the time of her
entry in California, before she had a chance to meet someone
in New York City. These substantial inconsistencies provide
adequate support for the IJ’s negative credibility finding. See
e.g., de Leon-Barrios v. INS, 116 F.3d 391, 393-94 (9th Cir.
1997).
[4] The discrepancies regarding her nationality and resi-
dence go to the heart of Kasnecovic’s withholding of removal
claim, while the changes in her reports regarding relatives
suggest that the relatives’ identity could have disproved her
testimony as to nationality and residence. Substantial evi-
dence therefore supports the IJ’s denial of the claim. See
Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
[5] Kasnecovic is also not entitled to CAT relief because
she did not present credible evidence that it is more likely
than not that she would be tortured if returned to Yugoslavia.
See 8 C.F.R. § 208.16(c); Malhi v. INS, 336 F.3d 989, 993
(9th Cir. 2003). Moreover, the background information sub-
mitted on Kosovo, Yugoslavia, shows that it is now under
United Nations control.
[6] Based on our determination regarding Kasnecovic’s
lack of credibility, we dismiss the asylum claim. Because we
would deny review on both the timeliness and merits grounds,
remand to the BIA for clarification is unnecessary. PETI-
TION FOR REVIEW DENIED in part, DISMISSED in part.
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