Kaba v. Holder , 606 F. App'x 615 ( 2015 )

14-1100
Kaba v. Holder
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 ASUMMARY ORDER@). A PARTY
CITING TO 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 16th day of April, two thousand fifteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 GUIDO CALABRESI,
9 REENA RAGGI,
10 Circuit Judges.
11 _____________________________________
12
13 Mohamed Jean Aboulaye Kaba,
14 AKA Charlie,
15
16 Petitioner,
17
18 v. 14-1100
19
20 Eric H. Holder, Jr., United States
21 Attorney General,
22
23 Respondent.
24 _____________________________________
25
26 FOR PETITIONER: Mohamed Jean Aboulaye Kaba, pro se, New
27 York, New York.
1
1
2 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
3 Attorney General; Julie M. Iversen,
4 Senior Litigation Counsel; Robert
5 Michael Stalzer, Trial Attorney,
6 Office of Immigration Litigation,
7 United States Department of Justice,
8 Washington, D.C.
9
10 UPON DUE CONSIDERATION of this petition for review of a
11 Board of Immigration Appeals (“BIA”) decision, it is hereby
12 ORDERED, ADJUDGED, AND DECREED that the petition for review is
13 DENIED.
14 Mohamed Jean Aboulaye Kaba, a native and citizen of the
15 Ivory Coast, seeks review of a March 13, 2014 decision of the
16 BIA, affirming a September 27, 2012 decision of Immigration
17 Judge (“IJ”) Helen Sichel, which denied Kaba’s applications for
18 adjustment of status and voluntary departure. See In re
19 Mohamed Jean Aboulaye Kaba, No. A098 049 368 (B.I.A. Mar. 13,
20 2014), aff’g No. A098 049 368 (Immig. Ct. N.Y.C. Sept. 27, 2012).
21 Under the circumstances of this case, we review the IJ’s opinion
22 as modified by the BIA, see Xue Hong Yang v. U.S. Dep’t of
23 Justice, 426 F.3d 520, 522 (2d Cir. 2005), applying well
24 established standards of review, see 8 U.S.C. § 1252(b)(4)(B);
25 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
26 In doing so, we assume the parties’ familiarity with the
2
1 underlying facts, the procedural history of the case, and the
2 issues on appeal.
3 For applications like Kaba’s, governed by the REAL ID Act,
4 the agency may, “[c]onsidering the totality of the
5 circumstances . . . base a credibility determination on the
6 demeanor, candor, or responsiveness of the applicant or
7 witness, the inherent plausibility of the applicant’s or
8 witness’s account,” and inconsistencies in an applicant’s
9 statements, and other record evidence “without regard to
10 whether” they go “to the heart of the applicant’s claim.”
11 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey, 534
12 F.3d at 163-64. We “defer . . . to an IJ’s credibility
13 determination unless, from the totality of the circumstances,
14 it is plain that no reasonable fact-finder could make such an
15 adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d
16 at 167.
17 The IJ reasonably relied on implausible aspects of Kaba’s
18 testimony in finding him not credible. In making a finding that
19 an applicant’s claim is inherently implausible, an IJ is not
20 required to “explain in precise detail what made each identified
21 act implausible.” See Wensheng Yan v. Mukasey, 509 F.3d 63,
22 67 (2d Cir. 2007). Rather, if “the reasons for [the IJ’s]
3
1 incredulity are evident,” the implausibility finding is
2 supported by substantial evidence. Id. We have recognized
3 that the point at which an implausibility finding “ceases to
4 be sustainable as reasonable and, instead, is justifiably
5 labeled ‘speculation,’ in the absence of an IJ's adequate
6 explanation, cannot be located with precision.” Ming Xia Chen
7 v. BIA, 435 F.3d 141, 145 (2d Cir. 2006). Nevertheless, while
8 “bald” speculation is an impermissible basis for an adverse
9 credibility finding, “[t]he speculation that inheres in
10 inference is not ‘bald’ if the inference is made available to
11 the factfinder by record facts, or even a single fact, viewed
12 in the light of common sense and ordinary experience.” Siewe
13 v. Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007). Accordingly,
14 so long as an IJ’s finding is “tethered to record evidence, and
15 there is nothing else in the record from which a firm conviction
16 of error could properly be derived,” we will not disturb the
17 inherent implausibility finding. Wensheng Yan v. Mukasey, 509
18 F.3d at 67; see also Siewe v. Gonzales, 480 F.3d at 169. In
19 reviewing an adverse credibility determination based on an
20 applicant’s implausible testimony, “we review the entire
21 record, not whether each unusual or implausible feature of the
22 account can be explained or rationalized.” Ying Li v. Bureau
4
1 of Citizenship and Immigration Servs., 529 F.3d 79, 80 (2d Cir.
2 2008).
3 Here, Kaba testified that he lived with his girlfriend for
4 two years and had two children with her, but did not know her
5 immigration status at any time. He also testified that he had
6 impersonated her to find employment four separate times prior
7 to his employment at the bakery. The IJ reasonably relied on
8 this testimony to find it implausible that Kaba would not know
9 (1) his girlfriend’s immigration status or (2) that the forms
10 he submitted to the bakery falsely indicated that his girlfriend
11 was a U.S. citizen. This reasoning was not unduly speculative,
12 and it is supported by testimony in the record. See Siewe v.
13 Gonzales, 480 F.3d at 168-169 (holding that speculation is not
14 “bald” if based on facts in record viewed in light of common
15 sense).
16 The IJ also reasonably relied on inconsistencies between
17 Kaba’s testimony and the testimony of the bakery’s owner. Kaba
18 testified that he went to the bakery to speak to a manager, and
19 that the manager completed his employment application for him.
20 The owner, however, testified that the store had no manager,
21 that he interviewed Kaba, and that no employee ever filled out
22 paperwork for job applicants. Kaba provided no explanation for
5
1 these discrepancies at his hearing. Accordingly, we identify
2 no basis to disturb the agency’s adverse credibility
3 determination.
4 This adverse finding disposes of Kaba’s argument that he
5 is eligible for adjustment of status. Even if we could reach
6 his argument that the Immigration and Nationality Act (“INA”)
7 requires that a false claim to citizenship be willful, Kaba’s
8 willfulness is supported by the IJ’s finding that Kaba was not
9 credible in denying knowledge of the false claim. See
10 Rodriguez v. Gonzales, 451 F.3d 60, 65 (2d Cir. 2006)
11 (recognizing that false denial of knowledge can support
12 willfulness).
13 Kaba also argues that the IJ denied him due process. Kaba,
14 however, failed to raise this issue before the BIA. See Foster
15 v. INS, 376 F.3d 75, 78 (2d Cir. 2004) (holding that petitioner
16 must “raise issues to the BIA in order to preserve them for
17 judicial review” (emphasis omitted)). Accordingly, we decline
18 to consider this argument.
19 Finally, Kaba argues that the agency’s denial of voluntary
20 departure was arbitrary. We lack jurisdiction, however, to
21 review Kaba’s challenge to the IJ’s discretionary balancing of
22 the equities. See 8 U.S.C. §§ 1229c(f), 1252(a)(2)(D).
6
1 For the foregoing reasons, the petition for review is
2 DENIED.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk of Court
7