Fuseini v. Barr ( 2020 )

18-2854
Fuseini v. Barr
BIA
Zagzoug, IJ
A208 120 768
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 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
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 17th day of November, two thousand twenty.
5
6 PRESENT:
7 DEBRA ANN LIVINGSTON,
8 Chief Judge,
9 PIERRE N. LEVAL,
10 RAYMOND J. LOHIER, JR.,
11 Circuit Judges.
12 _____________________________________
13
14 BUHARI FUSEINI,
15 Petitioner,
16
17 v. 18-2854
18 NAC
19 WILLIAM P. BARR, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Gary J. Yerman, New York, NY.
25
26 FOR RESPONDENT: Ethan P. Davis, Acting Assistant
27 Attorney General; Andrew N.
28 O’Malley, Senior Litigation
29 Counsel; Kimberly A. Burdge, Trial
30 Attorney, Office of Immigration
1 Litigation, United States
2 Department of Justice, Washington,
3 DC.
4
5 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED,
6 AND DECREED that this petition for review of a decision of
7 the Board of Immigration Appeals (“BIA”) is DENIED.
8 Petitioner Buhari Fuseini, a native and citizen of Ghana,
9 seeks review of a September 10, 2018, decision of the BIA
10 affirming an August 29, 2017, decision of an Immigration Judge
11 (“IJ”) denying his application for asylum, withholding of
12 removal, and relief under the Convention Against Torture
13 (“CAT”). In re Buhari Fuseini, No. A208 120 768 (B.I.A. Sept.
14 10, 2018), aff’g No. A208 120 768 (Immig. Ct. N.Y. City Aug.
15 29, 2017). We assume the parties’ familiarity with the
16 underlying facts and procedural history.
17 Under the circumstances of this case, we have reviewed
18 both the IJ’s and BIA’s decisions “for the sake of
19 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
20 524, 528 (2d Cir. 2006). The applicable standards of review
21 are well established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei
22 Gao v. Sessions, 891 F.3d 67, 76–77 (2d Cir. 2018).
23 “Considering the totality of the circumstances, and all
24 relevant factors, a trier of fact may base a credibility
25 determination on the demeanor, candor, or responsiveness of
2
1 the applicant or witness, the inherent plausibility of the
2 applicant’s . . . account, the consistency between the
3 applicant’s or witness’s written and oral statements . . . ,
4 the internal consistency of each such statement, . . . and
5 any inaccuracies or falsehoods in such statements, without
6 regard to whether an inconsistency, inaccuracy, or falsehood
7 goes to the heart of the applicant’s claim, or any other
8 relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer
9 . . . to an IJ’s credibility determination unless, from the
10 totality of the circumstances, it is plain that no reasonable
11 fact-finder could make such an adverse credibility ruling.”
12 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008);
13 accord Hong Fei Gao, 891 F.3d at 76. Substantial evidence
14 supports the agency’s determination that Fuseini was not
15 credible as to his claim that his father and members of his
16 community in Ghana beat him because he is bisexual.
17 The agency reasonably relied on Fuseini’s inconsistent
18 testimony about how he came to possess the copy of his birth
19 certificate that he submitted in support of his application,
20 which bore a March 2016 certification that it was a true copy.
21 Fuseini initially testified that he had this copy when he
22 came to the United States in February 2015. When asked how
23 he could have possessed a document dated March 2016 in
3
1 February 2015, he changed his story and stated that a friend
2 in Ghana mailed it to him. He claimed to still have the
3 envelope in which it was mailed but did not have it with him.
4 He had no other evidence from Ghana to corroborate his
5 identity, claiming that he lost his passport in Colombia and
6 that he never obtained a national identity card in Ghana,
7 even though one was required.
8 This internal inconsistency in Fuseini’s testimony about
9 the birth certificate constitutes substantial support for the
10 adverse credibility determination because whether Fuseini is
11 a citizen of Ghana is material to his asylum claim. See Xian
12 Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir.
13 2006) (holding that a material inconsistency concerning the
14 basis of an applicant’s asylum claim is substantial evidence
15 of adverse credibility); Dhoumo v. BIA, 416 F.3d 172, 174 (2d
16 Cir. 2005) (concluding that an applicant’s “nationality, or
17 lack of nationality, is a threshold question in determining
18 his eligibility for asylum”); see also Siewe v. Gonzales, 480
19 F.3d 160, 170 (2d Cir. 2007) (“[A] single false document or
20 a single instance of false testimony may (if attributable to
21 the petitioner) infect the balance of the alien’s
22 uncorroborated or unauthenticated evidence.”).
23 The IJ also reasonably relied on Fuseini’s demeanor,
4
1 noting that he lacked forthrightness in responding to simple
2 questions and that his testimony was vague and vacillating.
3 We grant “particular deference” to a demeanor finding because
4 “the IJ’s ability to observe the witness’s demeanor places
5 her in the best position to evaluate . . . credibility.” Jin
6 Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d Cir.
7 2005). The IJ specified that Fuseini vacillated about whether
8 he had friends in the United States, he gave “vague accounts
9 of the difficulties” of securing a new passport, and he did
10 not explain how he traveled through several countries without
11 his passport after he lost it in Colombia. The record
12 supports these findings.
13 For example, Fuseini initially testified that he had no
14 friends in the United States, but he later changed his
15 testimony, stating that he asked his friends about what
16 documents he would need to obtain a new passport. When
17 confronted with this inconsistent testimony, he stated that
18 “[t]hey’re not necessarily my friends, but we always talk,
19 just because we’re all from the same country.” The IJ was
20 not required to accept this explanation. See Majidi v
21 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
22 do more than offer a plausible explanation for his
23 inconsistent statements to secure relief; he must demonstrate
5
1 that a reasonable fact-finder would be compelled to credit
2 his testimony.” (internal quotation marks omitted)). Fuseini
3 also gave vague answers about how he was able to travel
4 through several countries without a passport and why he had
5 not obtained a new passport.
6 Having questioned Fuseini’s credibility, the agency
7 reasonably determined that he did not rehabilitate his
8 credibility with reliable corroborating evidence. “An
9 applicant’s failure to corroborate his or her testimony may
10 bear on credibility, because the absence of corroboration in
11 general makes an applicant unable to rehabilitate testimony
12 that has already been called into question.” Biao Yang v.
13 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). Without citing
14 to any legal support, Fuseini argues that he is not required
15 to corroborate his sexual orientation because it “is a
16 complicated personal feeling or characteristic that cannot be
17 proved or disproved by physical evidence or other people’s
18 words.” Although in certain circumstances the agency may not
19 deny relief based on an “otherwise credible” applicant’s
20 failure to provide corroborating evidence, it properly relied
21 on the lack of corroboration here because, as explained above,
22 Fuseini was not “otherwise credible.” Xiao Ji Chen v. U.S.
23 Dep’t of Justice, 471 F.3d 315, 341 (2d Cir. 2006) (emphasis
6
1 omitted). Further, Fuseini had the burden to establish that
2 his “membership in a particular social group . . . was or
3 will be at least one central reason for” his persecution. 8
4 U.S.C. § 1158(b)(1)(B)(i) (placing the burden of proof on the
5 asylum applicant).
6 In sum, the inconsistencies, demeanor finding, and lack
7 of corroboration described above provide substantial evidence
8 for the agency’s adverse credibility determination. See
9 8 U.S.C. § 1158(b)(1)(B)(iii). That determination is
10 dispositive of asylum, withholding of removal, and CAT relief
11 here because all three claims are based on the same factual
12 predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d
13 Cir. 2006).
14 For the foregoing reasons, the petition for review is
15 DENIED. All pending motions and applications are DENIED and
16 stays VACATED.
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe,
19 Clerk of Court
7