09-1049-ag
Musenge v. Holder
BIA
Rocco, IJ
A076 100 748
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 28 th day of June, two thousand ten.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 ROBERT A. KATZMANN,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 DONATE LUYOMBYA MUSENGE,
14 Petitioner,
15
16 v. 09-1049-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: pro se
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Michelle G. Latour,
27 Assistant Director; Sunah Lee, Trial
28 Attorney, Office of Immigration
29 Litigation, United States Department
30 of Justice, Washington, D.C.
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 Donate Luyombya Musenge, a native and citizen of the
6 Democratic Republic of the Congo, seeks review of a February
7 19, 2009, order of the BIA, affirming on remand the December
8 20, 2002, decision of Immigration Judge (“IJ”) Michael
9 Rocco, which denied his application for asylum, withholding
10 of removal, and relief under the Convention Against Torture.
11 In re Musenge, No. A076 100 748 (B.I.A. Feb. 19, 2009),
12 aff’g No. A076 100 748 (Immig. Ct. Buffalo Dec. 20, 2002).
13 We assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case, we review the
16 BIA’s decision alone. See Belortaja v. Gonzales, 484 F.3d
17 619, 622-23 (2d Cir. 2007). The applicable standards of
18 review are well-established. See Shu Wen Sun v. BIA, 510
19 F.3d 377, 379 (2d Cir. 2007); Salimatou Bah v. Mukasey, 529
20 F.3d 99, 110 (2d Cir. 2008).
21 Because we are called upon to review findings that we
22 adjudicated previously, under the law of the case doctrine
2
1 we follow our earlier holdings, unless “cogent and
2 compelling reasons militate otherwise.” See United States
3 v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002) (internal
4 quotation marks and citations omitted). In 2006, we held
5 that while two of the grounds supporting the IJ’s adverse
6 credibility determination were erroneous, the finding that
7 the date of issuance on the marriage certificate conflicted
8 with Musenge’s testimony was: (1) “supported by the record”;
9 (2) “serious”; and (3) “[went] to the heart of [Musenge]’s
10 claim” insofar as it “undermine[d] his claim to ever have
11 been imprisoned.” Musenge v. BCIS, 196 Fed. App’x 29, 30
12 (2d Cir. 2006) (unpublished). We nevertheless remanded
13 Musenge’s case to the BIA because we could not “state with
14 confidence that the IJ would adhere to his decision” on the
15 basis of the non-erroneous finding alone. Musenge, 196 Fed.
16 App’x at 30-31 (quoting Xiao Ji Chen v. U.S. Dep’t of
17 Justice, 434 F.3d 144, 161 (2d Cir. 2006) (revised in other
18 part and reissued at 471 F.3d 315 (2d Cir. 2006))).
19 On remand, the BIA clarified that the IJ’s single non-
20 erroneous finding supported an overall adverse credibility
21 determination. Thus, we are now called upon to determine
22 whether substantial evidence supports that determination.
3
1 We conclude that it does. Accordingly, the agency did not
2 err in denying Musenge’s application for asylum, withholding
3 of removal, and CAT relief based on its adverse credibility
4 determination, insofar as each of those claims shared the
5 same factual predicate. See Paul v. Gonzales, 444 F.3d 148,
6 156 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice,
7 426 F.3d 520, 523 (2d Cir. 2006). Because the agency’s
8 adverse credibility finding is dispositive of Musenge’s
9 application for asylum, withholding of removal, and CAT
10 relief, we decline to address the agency’s alternative nexus
11 finding.
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of
14 removal that the Court previously granted in this petition
15 is VACATED, and any pending motion for a stay of removal in
16 this petition is DISMISSED as moot. Any pending request for
17 oral argument in this petition is DENIED in accordance with
18 Federal Rule of Appellate Procedure 34(a)(2), and Second
19 Circuit Local Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
4