13-377
Bamba v. Holder
BIA
Nelson, I.J.
A087 468 245
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 13th day of February, two thousand fourteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 REENA RAGGI,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 SOULEYMANE BAMBA,
14 Petitioner,
15
16 v. 13-377
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Matthew J. Harris, Brooklyn, New
24 York.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; M. Jocelyn Lopez Wright,
28 Senior Litigation Counsel; Anthony
29 J. Messuri, Trial Attorney, Civil
30 Division, Office of Immigration
31 Litigation, United States Department
32 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
4 review is DENIED.
5 Souleymane Bamba, a native and citizen of the Ivory
6 Coast, seeks review of a January 9, 2013, order of the BIA
7 affirming the August 1, 2011, decision of an Immigration
8 Judge (“IJ”) denying his application for asylum, withholding
9 of removal, and relief under the Convention Against Torture
10 (“CAT”). See In re Souleymane Bamba, No. A087 468 245
11 (B.I.A. Jan. 9, 2013), aff’g No. A087 468 245 (Immig. Ct.
12 N.Y. City Aug 1, 2011). We assume the parties’ familiarity
13 with the underlying facts and procedural history of this
14 case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as modified and supplemented by the BIA.
17 See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
18 522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271
19 (2d Cir. 2005). The applicable standards of review are well
20 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
21 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
22 We conclude that substantial evidence supports the
23 agency’s determination that Bamba’s testimony was not
2
1 credible. First, the IJ found that Bamba’s demeanor called
2 his credibility into question, a finding that we give
3 “particular weight.” Majidi v. Gonzales, 430 F.3d 77, 81
4 n.1 (2d Cir. 2005). The IJ’s finding was supported by
5 several instances in the record where Bamba paused or evaded
6 the questions posed. The IJ’s demeanor finding was further
7 supported by inconsistencies and omissions in Bamba’s
8 testimony. See Li Hua Lin v. U.S. Dep’t of Justice, 453
9 F.3d 99, 109 (2d Cir. 2006) (“We can be still more confident
10 in our review of observations about an applicant’s demeanor
11 where, as here, they are supported by specific examples of
12 inconsistent testimony.”).
13 Indeed, Bamba does not even challenge two of the
14 agency’s bases for finding him not credible – inconsistent
15 testimony regarding how much his uncle paid to secure his
16 release after a March 2004 arrest, and when he left the
17 Ivory Coast for Mali – and those findings stand as valid
18 bases for the agency’s adverse credibility determination.
19 See Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008).
20 We do not rely, however, on the IJ’s findings regarding
21 Bamba’s passport, which the BIA expressly declined to adopt.
22 See Xue Hong Yang, 426 F.3d at 522.
3
1 Apart from the passport finding, the IJ’s remaining
2 findings also support the adverse credibility determination.
3 Bamba omitted from his application any mention of a November
4 2003 incident that he testified resulted in his being
5 injured. See Xu Duan Dong v. Ashcroft, 406 F.3d 110, 111-12
6 (2d Cir. 2005). The agency was not required to credit
7 Bamba’s explanation for the omission. See Majidi, 430 F.3d
8 at 80. Furthermore, Bamba gave conflicting testimony
9 regarding who came to his aid after a September 2003
10 incident.
11 Additionally, Bamba did not submit credible documentary
12 evidence in support of his application. Bamba’s evidence
13 consisted of: (1) a letter from party officials in the Ivory
14 Coast dated 2007 (even though Bamba claimed that he never
15 sought such a letter until 2009); (2) an undated letter from
16 a party official in New York; (3) a letter from his wife,
17 who was an interested witness; and (4) a letter from a
18 friend in Mali, which contradicted a statement Bamba made at
19 his hearing. In view of these deficiencies, the agency did
20 not err in discrediting the letters. See Y.C. v. Holder, __
21 F.3d __, 2013 WL 6642047, at *7 (2d Cir. 2013) (noting that
22 “[w]e defer to the agency’s determination of the weight
23 afforded to an alien’s documentary evidence” and finding no
4
1 error in the BIA’s decision to give “very little evidentiary
2 weight” to an unsworn letter “submitted by an interested
3 witness” (internal quotation marks omitted)).
4 Given Bamba’s demeanor, the omissions and
5 inconsistencies, and the lack of credible corroboration, the
6 agency’s adverse credibility determination is supported by
7 substantial evidence. See Xiu Xia Lin v. Mukasey, 534 F.3d
8 162, 167 (2d Cir. 2008). The agency’s adverse credibility
9 determination is also dispositive of the claims for
10 withholding of removal and relief under the CAT, as those
11 claims depend on the same factual predicate. See Paul v.
12 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang,
13 426 F.3d at 523.
14 For the foregoing reasons, the petition for review is
15 DENIED. As we have completed our review, any stay of
16 removal that the Court previously granted in this petition
17 is VACATED, and any pending motion for a stay of removal in
18 this petition is DISMISSED as moot. Any pending request for
19 oral argument in this petition is DENIED in accordance with
20 Federal Rule of Appellate Procedure 34(a)(2), and Second
21 Circuit Local Rule 34.1(b).
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
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