12-937
Diakite v. Holder
BIA
Nelson, IJ
A089 253 754
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
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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 26th day of August, two thousand fourteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
REENA RAGGI,
RICHARD C. WESLEY,
Circuit Judges.
_____________________________________
SOULEYMANE DIAKITE, AKA MOUSSA DIAKITE,
Petitioner,
v. 12-937
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Camille J. Mackler, New York, NY.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Keith I. McManus, Senior
Litigation Counsel; Surell Brady,
Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is DISMISSED in part and DENIED in part.
Souleymane Diakite, a native and citizen of Ivory
Coast, seeks review of a February 9, 2012, decision of the
BIA affirming a November 18, 2009, decision by an
Immigration Judge (“IJ”) denying asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Souleymane Diakite, No. A089 253 754 (B.I.A.
Feb. 9, 2012), aff’g No. A089 253 754 (Immig. Ct. N.Y. City
Nov. 18, 2009). We assume the parties’ familiarity with the
underlying facts and procedural history of this case.
Under the circumstances of this case, we have reviewed
both the IJ’s and the BIA’s opinions “for the sake of
completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
2008). The applicable standards of review are well
established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam).
Pursuant to 8 U.S.C. § 1158(a)(3), we lack jurisdiction
to review the agency’s determination that an asylum
application is untimely under 8 U.S.C. § 1158(a)(2)(B).
Although we retain jurisdiction to review “constitutional
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claims or questions of law,” 8 U.S.C. § 1252(a)(2)(D),
Diakite challenges only the weight accorded certain
evidence. Accordingly, he has not raised a colorable
question of law or constitutional claim. We therefore
dismiss the petition as to Diakite’s asylum claim.
We do have jurisdiction to review the agency’s denial
of withholding of removal on the ground that Diakite’s
testimony was not credible. For applications, like
Diakite’s, governed by the REAL ID Act, the agency may,
“[c]onsidering the totality of the circumstances,” base a
credibility finding on an asylum applicant’s demeanor, the
plausibility of his account, and inconsistencies in his
statements and other record evidence “without regard to
whether” they go “to the heart of the applicant’s claim.”
8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin,
534 F.3d at 163-64. Here, substantial evidence supports the
agency’s decision.
First, the IJ reasonably relied in part on Diakite’s
demeanor, noting that he was hesitant and lacked
forthrightness when answering questions. Particular
deference is given to the trier of fact’s assessment of
demeanor. Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir.
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2005); see Zhou Yun Zhang v. U.S. INS, 386 F.3d 66, 73-74
(2d Cir. 2004), overruled on other grounds by Shi Liang Lin
v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007).
The demeanor finding is strengthened and the adverse
credibility determination is further supported by specific
inconsistencies identified by the IJ. See Li Hua Lin v.
U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006).
Diakite’s testimony significantly differed from his aslyum
application. For example, Diakite testified that he
sustained an injury to his ear during an attack by the Young
Patriots, but did not mention that injury in his
application. The agency was not compelled to accept his
explanation that he omitted the injury because it was too
painful to discuss, given the other injuries and deaths
addressed in the application. Majidi, 430 F.3d at 80-81.
Diakite’s testimony also provided some reason to
question his credibility. For example, although one basis of
Diakite’s claim rested on his membership in the Rally for
Republicans (“RDR”), Diakite stumbled in attempting to
identify the party’s full name, and could not clearly
explain why he supported that political party. Cf. Rizal v.
Gonzales, 442 F.3d 84, 90 (2d Cir. 2006) (holding that,
although “doctrinal knowledge” of a religion is not required
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for asylum on religious grounds, lack of knowledge can under
certain circumstances indicate that the applicant is not
credible).
Having reasonably questioned Diakite’s credibility, the
agency did not err in relying on his failure to provide
corroborating evidence. See Biao Yang v. Gonzales, 496 F.3d
268, 273 (2d Cir. 2007) (per curiam). Diakite failed to
provide any evidence of the broken arm he sustained in the
second attack, although that evidence was apparently
available. And the State Department country reports
submitted did not show the Dioula as one of the groups that
have been subject to ethnic tensions in Ivory Coast, nor did
they contain any statements that security forces harassed or
detained RDR members in Ivory Coast in recent years. See
Jian Hui Shao v. Mukasey, 546 F.3d 138, 166 (2d Cir. 2008).
Given the demeanor finding, lack of corroboration, and
multiple discrepancies in Diakite’s testimony, substantial
evidence supports the adverse credibility determination.
See Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289,
295-96 (2d Cir. 2006) (per curiam). Because that
determination is dispositive, we deny Diakite’s petition for
review of his claim for withholding of removal.
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For the foregoing reasons, the petition for review is
DISMISSED in part and DENIED in part.
To the extent Diakite seeks review of the agency’s
November 2012 denial of his motion to reopen, this request
is denied because no petition for review was filed from that
decision. The September 2013 brief seeking such relief is
hereby STRICKEN. See 8 U.S.C. § 1252(b)(1) (providing that
a petition for review must be filed within 30 days after the
date of the agency’s final order); Stone v. INS, 514 U.S.
386, 405-06 (1995) (holding that removal orders and denials
of motions to reopen are separate and distinct final
orders).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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