Bah v. Holder , 541 F. App'x 100 ( 2013 )

11-2104
Bah v. Holder
BIA
Balasquide IJ
A095 476 281
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 6th day of November, two thousand thirteen.
5
6 PRESENT:
7 RALPH K. WINTER,
8 ROSEMARY S. POOLER,
9 ROBERT D. SACK,
10 Circuit Judges.
11
12 _________________________________________
13
14 MAMADOU YERO BAH,
15 Petitioner,
16
17 v. 11-2104
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _________________________________________
23
24 FOR PETITIONER: Theodore Vialet, New York, NY.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney General;
27 David V. Bernal, Assistant Director;
28 Lance L. Jolley, Trial Attorney, Office
29 of Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
32
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Mamadou Yero Bah, a native and citizen of
6 Guinea, seeks review of an April 22, 2011, decision of the BIA
7 affirming the April 20, 2009, decision of Immigration Judge
8 (“IJ”) Javier Balasquide denying his application for asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Mamadou Yero Bah, No. A095 476
11 281 (B.I.A. Apr. 22, 2011), aff’g No. A095 476 281 (Immig. Ct.
12 N.Y. City Apr. 20, 2009). We assume the parties’ familiarity
13 with the underlying facts and procedural history of the case.
14 We have reviewed both the BIA’s and the IJ’s opinions.
15 See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.
16 2005). The applicable standards of review are well
17 established. See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin
18 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
19 Substantial evidence supports the agency’s determination
20 that Bah did not testify credibly regarding his claim that he
21 had been persecuted in Guinea, as the IJ reasonably relied on
22 inconsistencies in the record. See Zhou Yun Zhang v. INS, 386
2
1 F.3d 66, 73 (2d Cir. 2004), overruled on other grounds by Shi
2 Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007
3 (en banc). As the IJ found, Bah’s testimony was inconsistent
4 with his written statement regarding when his second arrest
5 occurred and how long he was held at Camp Koundara, and both
6 Bah’s testimony and written statement were inconsistent with
7 his brother’s letter regarding the reason for Bah’s second
8 arrest. Also, as the IJ found, Bah’s direct testimony
9 regarding the number of times he had been arrested was
10 inconsistent with his testimony on cross examination after
11 being confronted with the discrepancy between his testimony
12 and his brother’s letter. The IJ reasonably declined to
13 credit Bah’s explanations for these inconsistencies – that he
14 had difficulty remembering the events because they were
15 traumatic, and that his brother’s letter described an arrest
16 that Bah did not include in his asylum application. Although
17 Bah’s faulty memory may be a plausible explanation for certain
18 discrepancies, his explanation for his brother’s letter did
19 not comport with the timeline he had testified to regarding
20 his persecution in Guinea, and thus was not credible. Neither
21 explanation would compel a reasonable fact finder to credit
22 Bah’s testimony. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d
3
1 Cir. 2005) (“A petitioner must do more than offer a
2 ‘plausible’ explanation for his inconsistent statements to
3 secure relief; he must demonstrate that a reasonable fact-
4 finder would be compelled to credit his testimony.”).
5 Bah argues that, even with the inconsistencies in his
6 testimony, his testimony was otherwise detailed and specific,
7 and, thus, the agency’s adverse credibility determination is
8 not supported by substantial evidence. The adverse
9 credibility finding, however, was based on inconsistencies
10 regarding the dates and duration of Bah’s arrests and
11 detention, as well as the number of times he was arrested.
12 Because Bah’s application for relief was based on these
13 arrests, detentions and beatings, the inconsistencies are
14 integral to his claim for relief, and are a reasonable basis
15 for the agency’s adverse credibility determination. See
16 Hongsheng Leng v. Mukasey, 528 F.3d 135, 141 (2d Cir. 2008)
17 (“The agency may properly base an adverse credibility
18 determination on a discrepancy in the petitioner’s evidence if
19 the discrepancy in question goes to the heart of the
20 petitioner’s claim for relief.”) (internal quotation marks
21 omitted). Nothing in the record compels the conclusion that
22 Bah testified credibly regarding his claims. See 8 U.S.C.
4
1 § 1252(B)(4)(b); Ying Li v. Bureau of Citizenship and Immig.
2 Servs, 529 F.3d 79, 81 (2d Cir. 2008) (applying the
3 substantial evidence standard to credibility determinations).
4 Accordingly, the agency did not err in denying Bah’s
5 applications for asylum, withholding of removal, and CAT
6 relief because those claims were based on the same factual
7 predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
8 2006).
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, any stay of removal
11 that the Court previously granted in this petition is VACATED,
12 and any pending motion for a stay of removal in this petition
13 is DISMISSED as moot. Any pending request for oral argument
14 in this petition is DENIED in accordance with Federal Rule of
15 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
16 34.1(b).
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
19
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