Diallo v. Holder , 531 F. App'x 138 ( 2013 )

12-1298
Diallo v. Holder
BIA
Van Wyke, IJ
A098 906 110
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 30th day of August, two thousand thirteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 DENNY CHIN,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11
12 ______________________________________
13
14 MAMADOU KOULABIOU DIALLO,
15 Petitioner,
16
17 v. 12-1298
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Gary J. Yerman, New York, New York
25
26 FOR RESPONDENT: Stuart F. Delery, Principal Deputy
27 Assistant Attorney General; James A.
28 Hunolt, Senior Litigation Counsel;
29 Jesse D. Lorenz, Trial Attorney,
1 Office of Immigration Litigation,
2 Civil Division, United States
3 Department of Justice, Washington,
4 D.C.
56 UPON DUE CONSIDERATION of this petition for review
7 of a Board of Immigration Appeals (“BIA”) decision, it is
8 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
9 review is DENIED.
10 Petitioner Mamadou Koulabiou Diallo, a native and
11 citizen of Guinea, seeks review of a March 8, 2012, order of
12 the BIA affirming the December 16, 2009, decision of
13 Immigration Judge (“IJ”) William Van Wyke denying Diallo's
14 application for asylum, withholding of removal, and relief
15 under the Convention Against Torture (“CAT”). In re Mamadou
16 Koulabiou Diallo, No. A098 906 110 (B.I.A. Mar. 8, 2012),
17 aff’g No. A098 906 110 (Immig. Ct. N.Y. City Dec. 16, 2009).
18 We assume the parties’ familiarity with the underlying facts
19 and procedural history in this case.
20 Under the circumstances of this case, we review
21 the decision of the IJ as supplemented by the BIA. See Yan
22 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
23 applicable standards of review are well-established. See
24 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
25 510, 513 (2d Cir. 2009). For asylum applications like
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1 Diallo’s, submitted prior to the passage of the REAL ID Act,
2 an adverse credibility determination must be based on
3 “specific, cogent reasons” that “bear a legitimate nexus to
4 the finding,” and any discrepancy must be “substantial” when
5 measured against the record as a whole. See Secaida-Rosales
6 v. INS, 331 F.3d 297, 307-08 (2d Cir. 2003) (quotations
7 omitted), superseded by statute as recognized by Xiu Xia Lin
8 v. Mukasey, 534 F.3d 162, 163-64 (2d Cir. 2008) (per
9 curiam); Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir.
10 2006). Here, substantial evidence supports the agency’s
11 adverse credibility determination.
12 The agency concluded that Diallo was not credible
13 because he provided inconsistent testimony and evidence
14 about several important aspects of his claim for relief,
15 including, for example, when he joined the Rally for the
16 People of Guinea Party, what he did while he was purportedly
17 in hiding following his detention in 2004, and whether his
18 parents were politically active in Guinea. These
19 inconsistencies were not minor or isolated, but related
20 directly to the basis of Diallo’s claim that he suffered
21 past persecution on account of his political activities.
22 Secaida-Rosales, 331 F.3d at 307. Taken cumulatively, they
3
1 cast doubt on the veracity of Diallo's claim that he was
2 politically active in Guinea and persecuted on account of
3 those activities, and they support the agency’s finding that
4 he was not credible. See Tu Lin, 446 F.3d at 402.
5 Diallo also argues that the agency failed to take
6 his explanations for the inconsistencies into account.
7 However, the IJ considered, and reasonably rejected as
8 unsatisfactory, Diallo’s explanations for the discrepancies.
9 See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A
10 petitioner must do more than offer a plausible explanation
11 for his inconsistent statements to secure relief; he must
12 demonstrate that a reasonable fact-finder would be compelled
13 to credit his testimony.” (quotations omitted)).
14 Specifically, as the agency noted, Diallo failed to offer
15 any explanation as to why he could not name the capital of
16 Guinea, despite filing a detailed asylum statement that
17 suggested at least basic political knowledge. In addition,
18 though Diallo testified he joined his political party in
19 1993 and his application stated he joined in 1997, his
20 explanation was that there was no discrepancy. Furthermore,
21 Diallo’s explanations that he had not understood the
22 questions regarding whether he emerged from hiding to do
4
1 anything except get food, and whether his parents were
2 members of a political party were unconvincing as the
3 questions were clear and were asked numerous times before
4 the contradiction was pointed out to him. As the
5 explanations would not compel a factfinder to credit the
6 testimony, the agency properly relied on the cumulative
7 effect of the inconsistencies in making the adverse
8 credibility determination. See Tu Lin, 446 F.3d at 402.
9 Given the multiple inconsistencies, the agency’s
10 adverse credibility determination is supported by
11 substantial evidence. See Secaida-Rosales, 331 F.3d at 307.
12 Moreover, the adverse credibility determination provided an
13 adequate basis for denying asylum, withholding of removal,
14 and CAT relief because the claims were based on the same
15 factual predicate. Paul v. Gonzales, 444 F.3d 148, 156-57
16 (2d Cir. 2006).
17 For the foregoing reasons, the petition for review
18 is DENIED. As we have completed our review, any stay of
19 removal that the Court previously granted in this petition
20 is VACATED, and any pending motion for a stay of removal in
21 this petition is DENIED as moot. Any pending request for
22 oral argument in this petition is DENIED in accordance with
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1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
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