Jalloh v. Holder , 607 F. App'x 30 ( 2015 )

13-682
Jalloh v. Holder
BIA
Bukszpan, IJ
A078 736 544
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 22nd day of April, two thousand fifteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 DEBRA ANN LIVINGSTON,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 ALIEU JALLOH,
14 Petitioner,
15
16 v. 13-682
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Amy Nussbaum Gell, Gell & Gell, New
24 York, NY.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Douglas E. Ginsburg,
28 Assistant Director; Andrew B.
29 Insenga, Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Alieu Jalloh, an alleged native and citizen
10 of Sierra Leone, seeks review of a January 29, 2013 order of
11 the BIA, affirming the September 29, 2010 decision of an
12 Immigration Judge (“IJ”), which denied asylum, withholding
13 of removal, and relief under the Convention Against Torture
14 (“CAT”). In re Alieu Jalloh, No. A078 736 544 (B.I.A. Jan.
15 29, 2013), aff’g No. A078 736 544 (Immig. Ct. New York City
16 Sep. 29, 2010). We assume the parties’ familiarity with the
17 underlying facts and procedural history in this case.
18 Under the circumstances of this case, we have reviewed
19 the IJ’s decision as modified by the BIA. See Xue Hong Yang
20 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
21 The applicable standards of review are well established.
22 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562
23 F.3d 510, 513 (2d Cir. 2009); Secaida-Rosales v. INS, 331
24 F.3d 297, 307 (2d Cir. 2003), overruled with respect to REAL
2
1 ID Act cases by Xiu Xia Lin v. Mukasey, 534 F.3d 162 (2d
2 Cir. 2008).
3 Because Jalloh filed his application in 2000, the REAL
4 ID Act does not apply in this case. See REAL ID Act of
5 2005, Div. B of Pub. L. No. 109-13, 119 Stat. 302, 303
6 (2005) (codified at 8 U.S.C. § 1158(b)(1)(B)(iii)); Matter
7 of S-B-, 24 I. & N. Dec. 42, 45 (B.I.A. 2006). In pre-REAL
8 ID Act cases, an adverse credibility determination must be
9 based on “specific, cogent reasons” that “bear a legitimate
10 nexus” to the finding, and any discrepancy must be
11 “substantial” when measured against the record as a whole.
12 See Secaida-Rosales, 331 F.3d at 307. The agency does not
13 err in basing an adverse credibility determination on the
14 submission of fraudulent identity documents. See Borovikova
15 v. U.S. Dep’t of Justice, 435 F.3d 151, 157-58 (2d Cir.
16 2006); Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007).
17 It may be that the IJ should have explicitly found that
18 he knew that his passport and ID card were fraudulent, but
19 Jalloh failed to exhaust this challenge on appeal before the
20 BIA. Instead he argued to the BIA that the IJ ignored
21 evidence that the documents were valid. The statute
22 requires that petitioners exhaust each category of relief
3
1 they seek. 8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462
2 F.3d 113, 119 (2d Cir. 2006). Petitioners must raise
3 specific issues with the BIA before raising them here. See
4 Foster v. INS, 376 F.3d 75, 77-78 (2d Cir. 2004). Issue
5 exhaustion is mandatory: “If[, as here,] the government
6 points out to the appeals court that an issue relied on
7 before that court by a petitioner was not properly raised
8 below, the court must decline to consider that issue, except
9 in [] extraordinary situations.” Lin Zhong v. U.S. Dep’t of
10 Justice, 480 F.3d 104, 107 n.1 (2d Cir. 2007).
11 We decline to consider Jalloh’s unexhausted challenge
12 to the IJ’s failure to explicitly find that he knew his
13 passport and ID card were fake. As a result, Jalloh is
14 unable to rely on any such defect in the credibility
15 determination. See Borovikova, 435 F.3d at 157-58
16 (explaining that the fraudulent document alone could support
17 an adverse credibility determination); Siewe, 480 F.3d at18 170.
19 The adverse credibility determination was further
20 supported by findings that Jalloh’s testimony about where he
21 lived in Sierra Leone was “exceptionally vague” and that his
22 lack of knowledge about post-war events in Sierra Leone was
4
1 implausible. He does not challenge those findings. See
2 Yueqing Zhang v. Gonzales, 426 F.3d 540, 542 n.1 (2d Cir.
3 2005) (“‘Issues not sufficiently argued in the briefs are
4 considered waived and normally will not be addressed on
5 appeal.’” (quoting Norton v. Sam’s Club, 145 F.3d 114, 117
6 (2d Cir. 1998))).
7 We conclude that the adverse credibility determination
8 is properly based on “specific, cogent reasons” that “bear a
9 legitimate nexus” to the finding. Secaida-Rosales, 331 F.3d
10 at 307. The credibility determination is dispositive of his
11 claims for asylum, withholding of removal, and CAT relief,
12 as all claims share the same factual predicate. See Paul v.
13 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang,
14 426 F.3d at 523.
15 Lastly, Jalloh contents that the agency failed to
16 properly weigh all of the evidence. The contention is
17 misplaced because the weight accorded to evidence lies
18 largely within the discretion of the agency. See Xiao Ji
19 Chen v. US Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.
20 2006). Moreover, the agency explicitly referenced the
21 evidence on the record, observed that it had no way of
22 ascertaining the identity of anyone abroad who was
23 proffering the evidence, and found that the evidence did not
5
1 rebut the findings of the Forensic Document Laboratory
2 report regarding the fraudulent passport and ID card. The
3 record therefore does not suggest that any evidence was
4 ignored. Id. at 337 n.17 (presuming that the agency “has
5 taken into account all of the evidence before [it], unless
6 the record compellingly suggests otherwise”).
7 For the foregoing reasons, the petition for review is
8 DENIED. As we have completed our review, any stay of
9 removal that the Court previously granted in this petition
10 is VACATED, and any pending motion for a stay of removal in
11 this petition is DISMISSED as moot. Any pending request for
12 oral argument in this petition is DENIED in accordance with
13 Federal Rule of Appellate Procedure 34(a)(2), and Second
14 Circuit Local Rule 34.1(b).
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
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