09-5334-ag
Diallo v. Holder
BIA
Mulligan, IJ
A097 535 483
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 29 th day of September, two thousand ten.
5
6 PRESENT:
7
8 JOSEPH M. McLAUGHLIN,
9 GUIDO CALABRESI,
10 RICHARD C. WESLEY,
11 Circuit Judges.
12 _______________________________________
13
14 MAMADOU FALILOU DIALLO,
15 A.K.A. AMADOU DIALLO,
16 Petitioner,
17
18 v. 09-5334-ag
19 NAC
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _______________________________________
24
25 FOR PETITIONER: Ronald S. Salomon, New York, New
26 York.
27
28 FOR RESPONDENT: Tony West, Assistant Attorney
29 General; Jennifer L. Lightbody,
30 Senior Litigation Counsel; Nicole J.
31 Thomas-Dorris, Trial Attorney,
1 Office of Immigration Litigation,
2 United States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED, that the petition for review
8 is DENIED.
9 Mamadou Falilou Diallo, a native and citizen of Guinea,
10 seeks review of a December 4, 2009, order of the BIA
11 affirming the September 24, 2008, decision of Immigration
12 Judge (“IJ”) Thomas J. Mulligan, pretermitting his asylum
13 application and denying his application for withholding of
14 removal and relief under the Convention Against Torture
15 (“CAT”). In re Mamadou Falilou Diallo, No. A097 535 483
16 (B.I.A. Dec. 4, 2009), aff’g No. A097 535 483 (Immig. Ct.
17 N.Y. City Sept. 24, 2008). We assume the parties’
18 familiarity with the underlying facts and procedural history
19 in this case.
20 Under the circumstances of this case, we review the
21 IJ’s decision as supplemented by the BIA’s decision. See
22 Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005) . The
23 applicable standards of review are well-established.
24 See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v.
25 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
2
1 Diallo challenges the agency’s denial, on adverse
2 credibility grounds, of his claim for withholding of
3 removal. However, substantial evidence supports the
4 agency’s adverse credibility determination. For asylum
5 applications governed by the REAL ID Act, the agency may,
6 considering the totality of the circumstances, base a
7 credibility finding on an asylum applicant’s “demeanor,
8 candor, or responsiveness,” the plausibility of his or her
9 account, and inconsistencies in his or her statements,
10 without regard to whether they go “to the heart of the
11 applicant’s claim.” See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu
12 Xia Lin, 534 F.3d at 167.
13 We defer to the IJ’s finding that Diallo’s “poor” and
14 “anxious” demeanor undermined his credibility. See Majidi
15 v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005); see also
16 Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 116-17 (2d
17 Cir. 2007). Additionally, the IJ reasonably based his
18 adverse credibility determination on several discrepancies
19 among Diallo’s testimony, his written application, and his
20 supporting evidence. For example, the IJ noted that,
21 although Diallo testified that he was not a “member” of the
22 UPR, but merely a “supporter,” and that he did not know what
3
1 UPR stood for, both his written application and a letter
2 from the president of the UPR provided that he was, in fact,
3 a “member” and his written application also indicated that
4 the UPR stood for “Union for Progress and Renewal.” The IJ
5 also noted the inconsistency between Diallo’s testimony that
6 he was detained in Guinea for exactly four months, his
7 wife’s letter stating that he was detained for three months,
8 and a document requesting that his asylum application be
9 corrected to indicate that he was detained for three months
10 and nine days, as opposed to six months. These
11 inconsistencies were proper bases for finding Diallo not
12 credible. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,
13 534 F.3d at 167. To the extent that Diallo offered
14 explanations for these inconsistencies, the IJ was not
15 compelled to credit them. See Majidi, 430 F.3d at 80-81.
16 Moreover, the IJ did not err in finding that Diallo’s
17 failure to present adequate corroborating evidence for his
18 claim of persecution further undermined his credibility. See
19 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)
20 (finding that an applicant’s failure to corroborate his or
21 her testimony may bear on credibility, because the absence
22 of corroboration in general renders the applicant unable to
4
1 rehabilitate testimony that has already been called into
2 question).
3 Finally, because Diallo failed to challenge the IJ’s
4 denial of his CAT claim in his appeal to the BIA, we are as
5 a statutory matter without jurisdiction to consider any
6 challenge to the denial of that relief. See 8 U.S.C.
7 § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir.
8 2006).
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, any stay of
11 removal that the Court previously granted in this petition
12 is VACATED, and any pending motion for a stay of removal in
13 this petition is DISMISSED as moot. Any pending request for
14 oral argument in this petition is DENIED in accordance with
15 Federal Rule of Appellate Procedure 34(a)(2), and Second
16 Circuit Local Rule 34.1(b).
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
19
20
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