Sarr v. Garland ( 2023 )

20-3836
Sarr v. Garland
BIA
Baumgarten, IJ
A203 601 689
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
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 16 th day of August, two thousand
4 twenty-three.
5
6 PRESENT:
7 GERARD E. LYNCH,
8 RAYMOND J. LOHIER, JR.,
9 EUNICE C. LEE,
10 Circuit Judges.
11 _____________________________________
12
13 MAMADOU AMADOU SARR,
14 Petitioner,
15
16 v. 20-3836
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Lara Nochomovitz, LSN Legal LLC, Chagrin
24 Falls, OH.
1 FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant
2 Attorney General; Carl H. McIntyre, Jr.,
3 Assistant Director; Kevin J. Conway, Trial
4 Attorney, Office of Immigration Litigation,
5 United States Department of Justice,
6 Washington, DC.
7 UPON DUE CONSIDERATION of this petition for review of a Board of
8 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
9 DECREED that the petition for review is DENIED.
10 Petitioner Mamadou Amadou Sarr, a native and citizen of Mauritania, seeks
11 review of an October 16, 2020, decision of the BIA affirming an April 22, 2020,
12 decision of an Immigration Judge (“IJ”) denying his application for asylum,
13 withholding of removal, and relief under the Convention Against Torture
14 (“CAT”). In re Mamadou Amadou Sarr, No. A203 601 689 (B.I.A. Oct. 16, 2020), aff’g
15 No. A203 601 689 (Immigr. Ct. Richwood, LA Apr. 22, 2020). We assume the
16 parties’ familiarity with the underlying facts and procedural history.
17 Under the circumstances, we have considered the IJ’s credibility and
18 corroboration findings that the BIA relied on. See Xue Hong Yang v. U.S. Dep’t of
19 Justice, 426 F.3d 520, 522 (2d Cir. 2005); see also Arulnanthy v. Garland, 17 F.4th 586,
2
1 592 (5th Cir. 2021). 1 We review factual findings, including adverse credibility
2 determinations, for substantial evidence. See Hong Fei Gao v. Sessions, 891 F.3d 67,
3 76 (2d Cir. 2018) (reviewing factual findings “under the substantial evidence
4 standard”); Arulnanthy, 17 F.4th at 592 (same). “[T]he administrative findings of
5 fact are conclusive unless any reasonable adjudicator would be compelled to
6 conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We need not reach Sarr’s
7 challenge to the agency’s adverse credibility determination because, even
8 assuming that the agency’s credibility finding was not supported by substantial
9 evidence, the agency’s alternative finding that Sarr failed to provide sufficient
10 corroborating evidence is dispositive. See 8 U.S.C. § 1158(b)(1)(B)(ii); see also
11 Gurung v. Barr, 929 F.3d 56, 61 (2d Cir. 2019) (recognizing that remand to correct
12 an error is not required if “remand would be futile”); Jaco v. Garland, 24 F.4th 395,
13 406 (5th Cir. 2021) (same).
1
The BIA relied on Fifth Circuit law because removal proceedings against Sarr
were commenced and completed in Louisiana. In a previous decision regarding
the proper venue for Sarr’s motion for stay of removal, we concluded that the Fifth
Circuit is the proper venue for Sarr’s petition but declined to transfer his petition
in the interest of justice. Sarr v. Garland, 50 F.4th 326, 332 (2d Cir. 2022). In the
instant appeal, the parties do not argue that the choice of whether to apply Second
Circuit or Fifth Circuit law dictates the merits of Sarr’s petition or that there are
any relevant differences in the precedent of either circuit.
3
1 To establish eligibility for asylum, an applicant must show that he “has
2 suffered past persecution” or “has a well-founded fear of future persecution.”
3 8 C.F.R. § 1208.13(b). “An applicant who has been found to have established . . .
4 past persecution shall also be presumed to have a well-founded fear of [future]
5 persecution on the basis of the original claim.” Id. § 1208.13(b)(1). Absent past
6 persecution, a noncitizen may establish eligibility for asylum by demonstrating a
7 well-founded fear of future persecution. Id. § 1208.13(b)(2); Ramsameachire v.
8 Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). To do so, an applicant must show either
9 a reasonable possibility that he will be “singled out” for persecution or that the
10 country of removal has a “pattern or practice” of persecuting “similarly situated”
11 individuals. 8 C.F.R. § 1208.13(b)(2)(iii).
12 “The testimony of the applicant may be sufficient to sustain the applicant’s
13 burden without corroboration, but only if the applicant satisfies the trier of fact
14 that the applicant’s testimony is credible, is persuasive, and refers to specific facts
15 sufficient to demonstrate that the applicant is a refugee.” 8 U.S.C.
16 § 1158(b)(1)(B)(ii); see also id. § 1231(b)(3)(C); Wei Sun v. Sessions, 883 F.3d 23, 28 (2d
17 Cir. 2018); Avelar-Oliva v. Barr, 954 F.3d 757, 764, 771 (5th Cir. 2020). “Where the
18 trier of fact determines that the applicant should provide evidence that
4
1 corroborates otherwise credible testimony, such evidence must be provided unless
2 the applicant does not have the evidence and cannot reasonably obtain the
3 evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii); see also id. § 1231(b)(3)(C). “No court shall
4 reverse a determination made by a trier of fact with respect to the availability of
5 corroborating evidence . . . unless . . . a reasonable trier of fact is compelled to
6 conclude that such corroborating evidence is unavailable.” Id. § 1252(b)(4). The
7 agency did not err in concluding that Sarr failed to satisfy his burden of proof.
8 The agency did not err in requiring evidence to corroborate Sarr’s claims of
9 past persecution and fear of future harm given his questionable demeanor and the
10 fact that his testimony was not particularly detailed or persuasive. See id.
11 § 1158(b)(1)(B)(ii). We afford “particular deference” to an IJ’s demeanor findings.
12 Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d Cir. 2005); see also Yanfen Wang
13 v. Holder, 569 F.3d 531, 539 (5th Cir. 2009).
14 As the agency found, Sarr did not provide personalized evidence to
15 corroborate his ethnicity, his account of being enslaved, or his assertion that his
16 former enslaver is looking for him in Mauritania. Rather, he relied entirely on
17 general country conditions, which could not corroborate those aspects of his
5
1 claims.2 See id.2 Sarr argues that the BIA failed to address, independent of credibility,
3 whether he established a well-founded fear of persecution. In particular, he
4 argues that, because the parties stipulated to his ethnicity and the IJ found that the
5 stipulated ethnicity faces a pattern or practice of slavery, he has a well-founded
6 fear of persecution. Contrary to Sarr’s contention, the BIA addressed his claim of
7 a well-founded fear of persecution and agreed with the IJ that, even if credible,
8 Sarr failed to adequately corroborate that claim. Further, the agency reasonably
9 found that Sarr failed to satisfy his burden of showing that he belongs to an ethnic
10 group that is subject to slavery in Mauritania. The Government and Sarr
11 stipulated that Sarr would testify consistently with his application regarding the
12 biographic facts provided but, contrary to Sarr’s argument, they did not stipulate
13 as to the truth of those facts.
2 We address only whether Sarr met his burden to establish a fear of future
persecution because he does not challenge the agency’s finding that he failed to
adequately corroborate his claim of past persecution so as to establish a
presumption of future persecution. See Yueqing Zhang v. Gonzales, 426 F.3d 540,
541 n.1 (2d Cir. 2005) (stating that petitioner abandons claim by not raising it in his
brief); Sharma v. Holder, 729 F.3d 407, 411 n.1 (5th Cir. 2013) (same).
6
1 The agency did not err in finding that Sarr failed to provide reasonably
2 available evidence corroborating that he belongs to an ethnic group that is
3 enslaved in Mauritania because, despite leaving that country using a Mauritanian
4 identification card and passport, he did not submit those documents to
5 corroborate his identity. Because Sarr failed to submit any evidence to
6 corroborate his ethnicity, the agency did not err in concluding that he failed to
7 satisfy his burden of proof to establish that he would be singled out for persecution
8 or would be subjected to a pattern or practice of persecution on account of
9 ethnicity. See 8 U.S.C. § 1158(b)(1)(B)(ii); 8 C.F.R. § 1208.13(b)(2)(iii). Sarr’s
10 failure to corroborate his ethnicity is dispositive regardless of what ethnicity he
11 claims to be, or the agency found him to be, both of which have changed over the
12 course of his proceedings.
13 Because Sarr did not corroborate his claim that he was enslaved in
14 Mauritania, that his former enslaver remains interested in him, or that he would
15 be singled out for persecution or subject to a pattern or practice of persecution on
16 account of his ethnicity, the agency did not err in finding that Sarr failed to satisfy
17 his burden of establishing past persecution or a well-founded fear of persecution.
18 See 8 U.S.C. § 1158(b)(1)(B)(ii). Those findings were dispositive of asylum,
7
1 withholding of removal, and CAT relief because all three claims were based on the
2 same factual predicate. See 8 C.F.R. §§ 1208.13(b), 1208.16(b); Lecaj v. Holder, 616
3 F.3d 111, 119–20 (2d Cir. 2010) (an applicant who fails to show sufficient risk of
4 harm for asylum “necessarily fails” to meet the higher burdens for withholding of
5 removal and CAT relief); Ghotra v. Whitaker, 912 F.3d 284, 289–90 (5th Cir. 2019)
6 (denying withholding of removal and CAT relief where applicant failed to meet
7 burden for asylum based on lack of credible testimony or corroborating evidence
8 and all claims were “premised on the same factual situation”).
9 For the foregoing reasons, the petition for review is DENIED. All pending
10 motions and applications are DENIED and stays VACATED.
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe,
13 Clerk of Court
14
8