Ba v. Sessions ( 2018 )

16-4190
Ba v. Sessions
BIA
Cheng, IJ
A201 122 222
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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 23rd day of April, two thousand eighteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 PETER W. HALL,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 OUMAR SAMBA BA,
14 Petitioner,
15
16 v. 16-4190
17 NAC
18 JEFFERSON B. SESSIONS III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Diana L. Castaneda, New York, NY.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; John S. Hogan,
27 Assistant Director; Robbin K.
28 Blaya, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Oumar Samba Ba, a native and citizen of
6 Mauritania, seeks review of a November 18, 2016, decision
7 of the BIA affirming a September 24, 2015, decision of an
8 Immigration Judge (“IJ”) denying Ba’s application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Oumar Samba Ba,
11 No. A 201 122 222 (B.I.A. Nov. 18, 2016), aff’g No. A 201
12 122 222 (Immig. Ct. N.Y. City Sept. 24, 2015). We assume
13 the parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 both the BIA’s and IJ’s decisions. See Yun-Zui Guan v.
17 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The standards
18 of review are well established. See 8 U.S.C. § 1252(b)(4);
19 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165 (2d Cir. 2008).
20 The agency may, “[c]onsidering the totality of the
21 circumstances,” base a credibility finding on “the
22 consistency between the applicant’s or witness’s written
23 and oral statements . . ., the internal consistency of each
2
1 such statement, the consistency of such statements with
2 other evidence of record . . ., and any inaccuracies or
3 falsehoods in such statements, without regard to whether an
4 inconsistency, inaccuracy, or falsehood goes to the heart
5 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii);
6 Xiu Xia Lin, 534 F.3d at 163-64. “We defer . . . to an
7 IJ’s credibility determination unless . . . it is plain
8 that no reasonable fact-finder could make such an adverse
9 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
10 Substantial evidence supports the agency’s determination
11 that Ba was not credible.
12 As set forth below, the adverse credibility
13 determination is supported by significant inconsistencies
14 between Ba’s testimony on the one hand and his written
15 statement and documentary evidence on the other. See 8
16 U.S.C. § 1158(b)(1)(B)(iii). Ba testified, for example,
17 that the Mauritanian government confiscated his farmland
18 without compensation and assigned it to non-black
19 Mauritanians. But he omitted the confiscation of his own
20 personal land from his written statement, and the letters
21 from his brother, wife, and friend similarly contain no
22 reference to seizure of Ba’s (or their) own land. The IJ
23 reasonably concluded that the omissions from Ba’s written
3
1 statement and his brother’s letter were significant because
2 Ba allegedly suffered a valuable loss to his livelihood as
3 the victim of the same racist and discriminatory practices
4 he publicly protested, and Ba’s brother co-owned the land.
5 See Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289,
6 295 (2d Cir. 2006) (holding that material inconsistency
7 relating to central aspect of asylum claim provided
8 substantial evidence for adverse credibility
9 determination); see also Xiu Xia Lin, 534 F.3d at 166 n.3
10 (“An inconsistency and an omission are . . . functionally
11 equivalent” for credibility purposes.); Ming Zhang v.
12 Holder, 585 F.3d 715, 726 (2d Cir. 2009) (“Omissions that
13 go to a heart of an applicant’s claim can form the basis
14 for an adverse credibility determination.” (citation and
15 quotation marks omitted)). The agency was not compelled to
16 accept the explanation that the Mauritanian government
17 confiscated all the land occupied by the black population
18 in Ba’s village and reasonably expected that Ba’s
19 application would have mentioned the seizure of his own
20 land. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.
21 2005) (“A petitioner must do more than offer a plausible
22 explanation for his inconsistent statements to secure
23 relief; he must demonstrate that a reasonable fact-finder
4
1 would be compelled to credit his testimony.” (internal
2 quotation marks and citation omitted)).
3 Additional inconsistencies regarding whether Ba sought
4 medical treatment following each of the alleged attacks
5 bolster the adverse credibility determination. 8 U.S.C.
6 § 1158(b)(1)(B)(iii); see Xiu Xia Lin, 534 F.3d at 167.
7 For example, Ba testified that he sought treatment in a
8 clinic after each of the three attacks, but neither his
9 written statement nor his family’s letters included any
10 reference to any medical treatment. Ming Zhang, 585 F.3d
11 at 726. The agency reasonably found the omission
12 significant as it relates to the level of harm Ba allegedly
13 suffered. See Xian Tuan Ye, 446 F.3d at 295. Although Ba
14 suggests that the IJ required him to answer complex
15 questions about his medical treatment despite his lack of
16 education, the IJ cited the lack of any reference to
17 medical treatment in Ba’s documentary evidence rather than
18 Ba’s lack of detailed medical knowledge.
19 Finally, the agency reasonably relied on Ba’s
20 inconsistent testimony regarding the submission of false
21 documentation to the consulate in support of his visa
22 application. Although the agency generally may not rely on
23 false statements made to escape persecution to find an
5
1 applicant not credible, the agency did not do so here.
2 Instead, the IJ relied mainly on the fact that Ba was
3 inconsistent at his hearing as to what false information he
4 had presented to obtain a visa to travel to the United
5 States and reasonably noted that Ba had been unharmed in
6 Mauritania for a couple of years before seeking a visa.
7 Cf. Rui Ying Lin v. Gonzales, 445 F.3d 127, 133 (2d Cir.
8 2006) (instructing that fraudulent document cannot form
9 basis of adverse credibility determination if such document
10 was used to escape “immediate danger or imminent
11 persecution”); Edimo-Doualla v. Gonzales, 464 F.3d 276, 288
12 (2d Cir. 2006) (same). We defer to the agency “[w]here
13 there are two permissible views of the evidence.” Siewe v.
14 Gonzales, 480 F.3d 160, 167 (2d Cir. 2007).
15 Substantial evidence supports the agency’s adverse
16 credibility determination given the centrality of Ba’s
17 omission regarding the confiscation of his own land, as
18 well as the more minor omissions and inconsistencies
19 relating to medical treatment and what false information he
20 presented to the U.S. consulate. See 8 U.S.C.
21 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. The
22 adverse credibility determination is dispositive of asylum,
23 withholding of removal, and CAT relief because all three
6
1 claims rely on Ba’s credibility. See Paul v. Gonzales, 444
2 F.3d 148, 156-57 (2d Cir. 2006).
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of removal
5 that the Court previously granted in this petition is VACATED,
6 and any pending motion for a stay of removal in this petition
7 is DISMISSED as moot. Any pending request for oral argument
8 in this petition is DENIED in accordance with Federal Rule of
9 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
10 34.1(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk of Court
13
7