11-2211
Nyonyo v. Holder
BIA
Balasquide, IJ
A079 716 474
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 Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 6th day of January, two thousand fourteen.
PRESENT:
JOHN M. WALKER, JR.,
ROSEMARY S. POOLER,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
SOLOMON NYONYO,
Petitioner,
v. 11-2211
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Solomon Nyonyo, pro se, Queens,
NY.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Ernesto H. Molina, Jr.,
Assistant Director; Sheri R. Glaser,
Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC.
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 Solomon Nyonyo, a native and citizen of
Kenya, seeks review of an April 27, 2011, order of the BIA,
affirming a February 26, 2009, decision of Immigration Judge
(“IJ”) Javier Balasquide, which pretermitted his application
for asylum and denied his applications for withholding of
removal and relief under the Convention Against Torture
(“CAT”). In re Solomon Nyonyo, No. A079 716 474 (B.I.A.
Apr. 27, 2011), aff’g No. A079 716 474 (Immig. Ct. N.Y. City
Feb. 26, 2009). 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 as modified by the BIA. See Chen v.
Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
standards of review are well-established. See 8 U.S.C.
§ 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d
510, 513 (2d Cir. 2009).
In finding Nyonyo not credible, the agency reasonably
relied on the omission of his prior arrests from his
application to adjust status and inconsistencies in the
2
record concerning his knowledge of his ex-wife’s whereabouts
and his hiding in Kenya. See 8 U.S.C. § 1158(b)(1)(B)(iii);
see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 166 n.3 (2d
Cir. 2008) (providing that, for purposes of analyzing a
credibility determination, “[a]n inconsistency and an
omission are . . . functionally equivalent”). Although
Nyonyo argues, in reliance on pre-REAL ID Act case law, that
the “mere omission of details” and minor inconsistencies are
“insufficient to uphold an adverse credibility finding,” for
applications like Nyonyo’s, governed by the REAL ID Act, the
agency may base an adverse credibility determination on
inconsistencies and omissions in the record without regard
to whether they go “to the heart of the applicant’s claim.”
See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534
F.3d at 167; Matter of J-Y-C-, 24 I. & N. Dec. 260, 265
(B.I.A. 2007). Moreover, while Nyonyo argues that
corroborative evidence was not reasonably available because
he “has no power to force individuals to provide him
affidavits,” the agency based its adverse credibility
determination on inconsistencies and omissions in the record
and not on Nyonyo’s failure to provide reasonably available
corroborating evidence.
3
Nyonyo does not challenge the agency’s pretermission of
his asylum application as untimely.
In light of the agency’s adverse credibility
determination, it did not err in denying Nyonyo’s
applications for relief.
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
4