10-2525-ag
Konate v. Holder
BIA
Bukszpan, IJ
A095 850 665
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 19th day of July, two thousand eleven.
PRESENT: DENNIS JACOBS,
Chief Judge,
JON O. NEWMAN,
DEBRA ANN LIVINGSTON,
Circuit Judges.
______________________________________
MOUSSA KONATE,
Petitioner,
v. 10-2525-ag
NAC
ERIC H. HOLDER, JR., U.S. ATTORNEY
GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Ronald S. Salomon, New York, New York
FOR RESPONDENT: Tony West, Assistant Attorney General;
Michelle G. Latour, Assistant
Director, Jessica E. Sherman, Trial
Attorney, Office of Immigration
Litigation, U.S. Department of
Justice, Washington D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DENIED.
Petitioner Moussa Konate, an alleged native and citizen
of Mauritania, seeks review of the May 26, 2010, decision of
the BIA affirming the August 15, 2008, decision of Immigration
Judge (“IJ”) Joanna Bukszpan pretermitting his application for
asylum, and denying his application for withholding of
removal. In re Moussa Konate, No. A095 850 665 (B.I.A. May
26, 2010), aff’g No. A095 850 665 (Immig. Ct. N.Y. City Aug.
15, 2008). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision minus the arguments for denying relief that
were not relied upon by the BIA. See Xue Hong Yang v. U.S.
Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The
applicable standards of review are well-established. See 8
U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
513 (2d Cir. 2009). We review only the agency’s denial of
withholding of removal because Konate does not challenge the
agency’s pretermission of his asylum application.
-2-
The agency reasonably concluded that Konate failed to
demonstrate his eligibility for withholding of removal because
substantial evidence supports the agency’s adverse credibility
determination. Although Konate claims that he established his
eligibility for relief and that the agency improperly relied
on minor inconsistencies, the agency reasonably supported its
adverse credibility determination by relying on negative
findings in a forensic report concerning Konate’s identity and
nationality, and Konate’s failure to explain or submit
evidence to rebut those findings. See In re O-D-, 21 I. & N.
Dec. 1079, 1082 (BIA 1998) (drawing “adverse inferences” from
applicant’s attempt to establish nationality and identity with
documents that a forensics report found to be false, and from
failure to refute or explain the forensics report’s
conclusions, and finding that due to existence of
inconsistencies in the applicant’s testimony, remaining record
failed to overcome inference of incredibility created by false
documents); Borovikova v. U.S. Dept. of Justice, 435 F.3d 151,
157-58 (2d Cir. 2006) (determining that because substantial
evidence supported the IJ’s finding that a submitted birth
certificate was likely fraudulent, the IJ did not err in
resting her adverse credibility determination on that
finding). Moreover, the agency reasonably found that Konate’s
contradictory testimony regarding the sequence of events
-3-
surrounding his father’s death and his expulsion from
Mauritania, and his inability to explain whether he was eleven
or sixteen years old at the time, constituted substantial
discrepancies going to the heart of Konate’s claim, as his
claim was based exclusively on this incident. See Secaida-
Rosales v. INS, 331 F.3d 297, 307 (2d Cir. 2003) (holding that
any discrepancy relied upon to support an adverse credibility
determination must be “substantial” when measured against the
record as a whole); Majidi v. Gonzales, 430 F.3d 77, 81-82 (2d
Cir. 2005) (holding that substantial evidence supported
agency’s adverse credibility determination because petitioner
provided dramatically different accounts of incident on which
claim hinged).
Accordingly, because the agency’s adverse credibility
determination was supported by substantial evidence, it did
not err in denying Konate’s application for withholding of
removal. See Majidi, 430 F.3d at 81-82 (denying petition for
review of agency’s denial of asylum and withholding of removal
because substantial evidence supported agency’s adverse
credibility determination).
For the foregoing reasons, the petition for review is
DENIED. FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
-4-