Musenge v. Holder

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