Makosso v. Holder , 489 F. App'x 495 ( 2012 )

11-340-ag
Makosso v. Holder
BIA
Bukszpan, IJ
A098 273 526
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 31st day of July, two thousand twelve.
PRESENT:
RICHARD C. WESLEY,
RAYMOND J. LOHIER, JR.,
SUSAN L. CARNEY,
Circuit Judges.
_______________________________________
JOSEPH MAKOSSO,
Petitioner,
v. 11-340-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Joseph Makosso, pro se, New York,
New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Ernesto H. Molina, Jr.,
Assistant Director; S. Nicole
Nardone, Trial Attorney, Office of
Immigration Litigation, U.S.
Department of Justice, Washington,
D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DISMISSED in part and DENIED in part.
Petitioner Joseph Makosso, who claims to be a native
and citizen of Congo, seeks review of the December 30, 2010
decision of the BIA affirming the January 29, 2009 decision
of an Immigration Judge (“IJ”), pretermitting his
application for asylum as untimely and denying his
applications for withholding of removal and relief under the
Convention Against Torture (“CAT”). In re Joseph Makosso,
No. A098 273 526 (B.I.A. Dec. 30, 2010), aff’g No. A098 273
526 (Immig. Ct. N.Y. City Jan 29, 2009). We assume the
parties’ familiarity with the underlying facts and
procedural history in this case.
As an initial matter, we lack jurisdiction to review
the agency’s decision insofar as it pretermitted Makosso’s
untimely asylum application. See 8 U.S.C. § 1158(a)(3). We
may, however, review Makosso’s challenges to the agency’s
denial of withholding of removal and CAT relief.
Under the circumstances of this case, we have reviewed
both the IJ’s and the BIA’s opinions “for the sake of
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completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
2008). The applicable standards of review are well
established. See 8 U.S.C. § 1252(b)(4)(B); see also Shu Wen
Sun v. BIA, 510 F.3d 377, 380 (2d Cir. 2007). In pre-REAL
ID Act cases, such as this one, an adverse credibility
determination must be based on “specific, cogent reasons”
that “bear a legitimate nexus” to the finding, and any
discrepancy must be “substantial” when measured against the
record as a whole. Secaida-Rosales v. INS, 331 F.3d 297,
307 (2d Cir. 2003) (internal quotation marks omitted),
superseded by statute, Pub. L. No. 109-113, 119 Stat. 231,
as recognized in Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163-
64 (2d Cir. 2008).
We conclude that substantial evidence supports the
agency’s determination that Makosso was not credible. In
making this determination, the agency reasonably relied in
part on Makosso’s vague, incoherent, and non-responsive
demeanor when testifying. See Majidi v. Gonzales, 430 F.3d
77, 81 n.1 (2d Cir. 2005). The agency’s demeanor finding
was further supported by specific examples of contradictory
statements and implausible testimony. See Li Hua Lin v.
U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006). For
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example, as the agency noted, Makosso asserted in his asylum
application that in November 1997, he and his family members
were tied up and beaten during a militia attack on their
house, but he later testified that he had fled the house
prior to the attack and thus did not suffer any harm. See Tu
Lin v. Gonzales, 446 F.3d 395, 402-03 (2d Cir. 2006) (noting
significant discrepancies between petitioner’s asylum
application and his later testimony as basis for adverse
credibility finding). Accordingly, we discern no error in
the agency’s denial on credibility grounds of Makosso’s
applications for withholding of removal and CAT relief. See
Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DISMISSED in part and DENIED in part. As we have completed
our review, any pending motion for a stay of removal and
petitioner’s motion for “petition for asylum” are DISMISSED
as moot. Any pending request for oral argument in this
petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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