Bah v. Holder , 535 F. App'x 48 ( 2013 )

12-1831
Bah v. Holder
BIA
Schoppert, IJ
A098 228 796
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 for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
3 City of New York, on the 15th day of October, two thousand thirteen.
4
5 PRESENT:
6 REENA RAGGI,
7 GERARD E. LYNCH,
8 RAYMOND J. LOHIER, JR.,
9 Circuit Judges.
10 _____________________________________
11
12 HASSANA THIERNO BAH,
13 Petitioner,
14
15 v. 12-1831
16 NAC
17 ERIC H. HOLDER, JR., UNITED STATES
18 ATTORNEY GENERAL,
19 Respondent.
20 _____________________________________
21
22 FOR PETITIONER: Gary J. Yerman, Yerman & Associates, LLC, New
23 York, N.Y.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant Attorney General;
26 Blair O’Connor, Assistant Director; Rachel L.
27 Browning, Trial Attorney, Office of Immigration
28 Litigation, Civil Division, United States Department of
29 Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a decision of the
2 Board of Immigration Appeals (“BIA”), it is hereby ORDERED, ADJUDGED, AND
3 DECREED that the petition for review is DISMISSED in part and DENIED in part.
4 Hassana Thierno Bah, a native and citizen of Guinea, seeks review of an April 4,
5 2012, decision of the BIA affirming the April 19, 2010, decision of Immigration Judge
6 (“IJ”) Douglas Schoppert, which pretermitted his application for asylum as untimely, and
7 denied his applications for withholding of removal and relief under the Convention
8 Against Torture (“CAT”). In re Hassana Thierno Bah, No. A098 228 796 (B.I.A. Apr. 4,
9 2012), aff’g No. A098 228 796 (Immig. Ct. N.Y. City Apr. 19, 2010). We assume the
10 parties’ familiarity with the underlying facts and procedural history of this case.
11 Under the circumstances of this case, we have considered both the IJ’s and the
12 BIA’s opinions “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237
13 (2d Cir. 2008) (internal quotation marks omitted). The applicable standards of review are
14 well established. See 8 U.S.C. § 1252(b)(4)(B); see also Xiao Ji Chen v. U.S. Dep’t of
15 Justice, 471 F.3d 315, 334-35 (2d Cir. 2006). As Bah does not challenge the agency’s
16 denial of CAT relief, this memorandum addresses only asylum and withholding of
17 removal.
18 I. Asylum
19 We do not have jurisdiction to review the agency’s finding that Bah’s asylum
20 application was untimely under 8 U.S.C. § 1158(a)(2)(B), or its finding that Bah’s alleged
21 medical problems did not excuse the application’s untimeliness under 8 U.S.C. §
2
1 1158(a)(2)(D). See 8 U.S.C. § 1158(a)(3). While we retain jurisdiction to review
2 constitutional claims and questions of law, see 8 U.S.C. § 1252(a)(2)(D), Bah has raised
3 no such claims. Bah challenges only the IJ’s factual findings regarding whether his
4 alleged medical problems affected his ability to file a timely application, which we lack
5 jurisdiction to review. See Liu v. INS, 508 F.3d 716, 721 (2d Cir. 2007) (“a petitioner
6 cannot us[e] the rhetoric of a constitutional claim or question of law to disguise what is
7 essentially a quarrel about fact-finding or the exercise of discretion” (internal quotation
8 marks omitted)).
9 II. Withholding of Removal
10 The agency reasonably denied withholding of removal based on a finding that Bah
11 lacked credibility. A pre-REAL ID Act1 adverse credibility determination must be based
12 on “specific, cogent” reasons that bear a “legitimate nexus” to the finding. See
13 Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir. 2003) (internal quotation marks
14 omitted) (setting forth pre-REAL ID Act credibility standard). The agency reasonably
15 found that Bah lacked credibility based on his inconsistent testimony regarding his
16 medical condition, his activities in Guinea after his alleged detention, his explanation for
17 why he did not seek asylum elsewhere during his international travels, and his repeated
1
Because Bah filed his asylum application in 2004, the REAL ID Act does not
apply in this case. See Gui Yin Liu v. Holder, 575 F.3d 193, 197 n.1 (2d Cir. 2009)
(noting that “[t]he REAL ID Act’s credibility standard applies to applications filed on or
after May 11, 2005”).
3
1 trips to Guinea,2 as well as Bah’s failure to corroborate his testimony. These inconsistent
2 aspects of Bah’s testimony were material to his claim of past persecution and alleged fear
3 of future persecution. We will not disturb an adverse credibility finding such as this that
4 is based on “specific examples . . . about matters material to [the] claim of persecution.”
5 Zhou Yun Zhang v. INS, 386 F.3d 66, 74 (2d Cir. 2004), overruled in part on other
6 grounds, Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007).
7 For the foregoing reasons, the petition for review is DISMISSED in part and
8 DENIED in part. As we have completed our review, the pending motion for a stay of
9 removal in this petition is DENIED as moot.
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk
12
2
To the extent Bah argues that Kone v. Holder precludes reliance on his travels
outside of Guinea, that case stands only for the proposition that where past persecution
already has been established, a return trip will not, on its own, rebut the presumption of a
well-founded fear. 596 F.3d 141, 149-150 (2d Cir. 2010). In the present case, however,
Bah has not established past persecution due to his lack of credibility. Accordingly, the
agency reasonably relied on Bah’s multiple trips in and out of Guinea in the years
immediately following the alleged persecution as evidence that he failed to establish a
credible fear. See Wensheng Yan v. Mukasey, 509 F.3d 63, 68 n.2 (2d Cir. 2007)
(finding reasonable the IJ’s conclusion that it was “implausible that a person seeking to
flee from repression . . . would have repeatedly put himself in situations where he
encountered legal authorities checking his identity”).
4