Mudiangomba v. Holder , 372 F. App'x 161 ( 2010 )

08-3153-ag (L); 08-6215-ag (Con)
Mudiangomba v. Holder
BIA
Straus, IJ
A095 837 895
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 20 th day of April, two thousand ten.
PRESENT:
JOHN M. WALKER, JR.,
GUIDO CALABRESI,
REENA RAGGI,
Circuit Judges.
_______________________________________
DIEMU JEAN PAUL MUDIANGOMBA,
Petitioner,
v. 08-3153-ag (L);
08-6215-ag (Con)
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL, 1
Respondent.
______________________________________
FOR PETITIONER: Justin Conlon, Law Offices of
Michael Boyle, North Haven,
1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
Connecticut.
FOR RESPONDENT: Tony West, Assistant Attorney
General, Civil Division; Leslie
McKay, Assistant Director, Office of
Immigration Litigation; Kristin K.
Edison, Attorney, U.S. Department of
Justice, Washington, D.C.
UPON DUE CONSIDERATION of these petitions for review of
two decisions of the Board of Immigration Appeals (“BIA”),
it is hereby ORDERED, ADJUDGED, AND DECREED that the
petitions for review are DENIED.
Petitioner Diemu Jean Paul Mudiangomba, allegedly a
native and citizen of the Democratic Republic of Congo
(“DRC”), seeks review of (1) a May 29, 2008 order of the BIA
affirming the July 21, 2006 decision of Immigration Judge
(“IJ”) Michael W. Straus denying petitioner’s application
for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”), In re Diemu Jean Paul
Mudiangomba, No. A 095 837 895 (B.I.A. May 29, 2008), aff’g
No. A 095 837 895 (Immig. Ct. Hartford Jul. 21, 2006); and
(2) a November 28, 2008 order of the BIA denying his motion
to reconsider, In re Diemu Jean Paul Mudiangomba, No. A 095
837 895 (B.I.A. Nov. 28, 2008). We assume the parties’
familiarity with the underlying facts and procedural history
of the case.
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A. Asylum, Withholding of Removal, and CAT Relief
When the BIA adopts the decision of the IJ and
supplements the IJ’s decision, this Court reviews the
decision of the IJ as supplemented by the BIA. See Yan Chen
v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review
the agency’s factual findings, including adverse credibility
findings, under the substantial evidence standard. 8 U.S.C.
§ 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90,
95 (2d Cir. 2008). We review de novo questions of law and
the application of law to undisputed fact. See Salimatou
Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
It is well-settled that identity is a threshold issue
in establishing eligibility for asylum. See Wangchuck v.
Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006)
(noting that a “petitioner’s nationality, or lack of
nationality, is a threshold question in determining his
eligibility for asylum” (internal quotation marks omitted));
see also Dhoumo v. BIA, 416 F.3d 172, 174 (2d Cir. 2005)
(same). Here, substantial evidence supports the IJ’s
determination that Mudiangomba failed to establish that he
is a native and citizen of the DRC. This evidence includes
a Zambian passport in the name “John Kapya Paul Mulumba”
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bearing Mudiangomba’s photograph. Although Mudiangomba
denied applying for the passport, its genuineness was
supported by a Forensic Document Laboratory (“FDL”) report,
which concluded that the passport “conform[ed] to specimen
documents on file in the FDL reference collection” and that
“no conclusive physical evidence of page or photograph
substitution and biographic data alteration was found.”
Further, contrary to Mudiangomba’s claim that he had not
traveled to Zambia in 2000, or visited the U.S. Consulate
there to apply for a visa, a State Department “Applicant
Case Lookup Detail” report, also bearing Mudiangomba’s
photograph, indicated that, on December 20, 2000, he
appeared as a “walk-in” applicant at the consulate in
Zambia, represented that he had been born in that country,
and was issued a United States visa.
Mudiangomba challenges the weight the IJ afforded the
FDL report and his rejection of Mudiangomba’s explanation
for how smugglers provided him with the Zambian passport.
Weight and credibility assessments lie largely within the
discretion of the IJ, and we detect no abuse of that
discretion here. See Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 342 (2d Cir. 2006); Majidi v. Gonzales, 430
4
F.3d 77, 80-81 (2d Cir. 2005). Mudiangomba additionally
argues that the IJ failed to consider all of the relevant
evidence. We presume, however, that an IJ has taken into
account all of the evidence before him, unless the record
compellingly suggests otherwise, which it does not in this
case. See Xiao Ji Chen, 471 F.3d at 336 n.17. Ultimately,
we conclude that a reasonable factfinder would not be
compelled to find contrary to the IJ that Mudiangomba
established that he was a native and citizen of the DRC.
See Majidi, 430 F.3d at 80-81 (noting that an IJ’s findings
of fact are conclusive “unless any reasonable adjudicator
would be compelled to conclude to the contrary”).
In sum, the adverse credibility determination was
within the IJ’s discretion and provided evidentiary support
for the conclusion that Mudiangomba failed to establish his
eligibility for asylum. Inasmuch as his claims for
withholding of removal and CAT relief share the same factual
predicate as his asylum claim, the IJ’s adverse credibility
finding is fatal to those claims as well. See Paul v.
Gonzales, 444 F.3d 148, 157 (2d Cir. 2006). Because the
adverse credibility finding is amply supported by the
record, the Court need not reach the agency’s alternate
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burden of proof findings.
B. Motion to Reconsider
A motion to reconsider must specify errors of fact or
law in the BIA’s decision and must be supported by pertinent
authority. See 8 C.F.R. § 1003.2(b)(1); Ke Zhen Zhao v.
U.S. Dep’t of Justice, 265 F.3d 83, 90 (2d Cir. 2001). A
motion to reconsider “is a request that the Board reexamine
its decision in light of additional legal arguments, a
change of law, or perhaps an argument or aspect of the case
which was overlooked.” Matter of Cerna, 20 I. & N. Dec.
399, 402 n.2 (B.I.A. 1991) (internal quotation marks
omitted).
In his motion to reconsider, Mudiangomba argued that
the IJ’s order designating the DRC as the alternative
country of removal was inconsistent with the agency’s
determination that Mudiangomba failed to prove Congolese
nationality and identity. An alien may be removed to “[a]
country in which the alien resided before the alien entered
the country from which the alien entered the United States.”
8 U.S.C. § 1231(b)(2)(E)(iii). In light of Mudiangomba’s
testimony that he resided in the DRC, we detect no error of
fact or law in the IJ’s designation of the DRC as the
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alternative country of removal. See id.; see also Jama v.
ICE, 543 U.S. 335, 341 (2005).
For the foregoing reasons, the petitions for review are
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in these petitions
is VACATED, and any pending motion for a stay of removal in
these petitions is DISMISSED as moot. Any pending request
for oral argument in these petitions is DENIED in accordance
with Federal Rule of Appellate Procedure 34(a)(2), and
Second Circuit Local Rule 34(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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