13-528
Ousmane v. Holder
BIA
Verrillo, IJ
A098 857 780
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 TO 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
2 Appeals for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of New
4 York, on the 6th day of November, two thousand fourteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 GERARD E. LYNCH,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 FOULERA OUSMANE,
14
15 Petitioner,
16
17 v. 13-528
18 NAC
19
20 ERIC H. HOLDER, JR., UNITED
21 STATES ATTORNEY GENERAL,
22
23 Respondent.
24
25 _____________________________________
26
27 FOR PETITIONER: Foulera Ousmane, pro se, Bronx, New
28 York.
1 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
2 Attorney General; John S. Hogan,
3 Senior Litigation Counsel; Matthew
4 Connelly, Trial Attorney, Office of
5 Immigration Litigation, United
6 States Department of Justice,
7 Washington D.C.
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, and DECREED that the petition for review
11 is DENIED.
12 Foulera Ousmane, a native and citizen of Togo, seeks
13 review of a January 15, 2013, decision of the BIA affirming
14 the November 3, 2010, decision of an Immigration Judge
15 (“IJ”), which denied her application for asylum, withholding
16 of removal, and relief pursuant to the Convention Against
17 Torture (“CAT”). In re Foulera Ousmane, No. A098 857 780
18 (B.I.A. Jan 15, 2013), aff’g No. A098 857 780 (Immig. Ct.
19 Hartford Nov. 3, 2010). We assume the parties’ familiarity
20 with the underlying facts and procedural history in this
21 case.
22 Under the circumstances of this case, we have reviewed
23 the IJ’s decision as supplemented by the BIA. See Yan Chen
24 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
25 applicable standards of review are well established. See 8
2
1 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
2 513 (2d Cir. 2009).
3 We conclude that the inconsistencies cited by the
4 agency provide substantial evidence to support the adverse
5 credibility determination. For asylum applications like
6 Ousmane’s, governed by the REAL ID Act of 2005, the agency
7 may, “[c]onsidering the totality of the circumstances,” base
8 a credibility finding on inconsistencies in an asylum
9 applicant’s statements without regard to whether they go “to
10 the heart of the applicant’s claim.” 8 U.S.C.
11 § 1158(b)(1)(B)(iii). We “defer therefore to [the agency’s]
12 credibility determination unless, from the totality of the
13 circumstances, it is plain that no reasonable fact-finder
14 could make such an adverse credibility ruling.” Xiu Xia Lin
15 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam).
16 The agency reasonably based its adverse credibility
17 determination on the inconsistencies between Ousmane’s
18 testimony and asylum application. A comparison shows
19 discrepancies regarding the circumstances surrounding her
20 and her husband’s arrest in Togo, the year of that arrest,
21 and the birth dates of her daughters, all of which call into
22 question her sole allegation of past harm–the arrest and
23 detention of herself and her husband.
3
1 Accordingly, the inconsistencies provide substantial
2 evidence for the adverse credibility determination. See 8
3 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.
4 Moreover, the agency was not required to credit her
5 explanation that she was nervous, as she was asked to
6 explain her inconsistencies and her answers were themselves
7 inconsistent. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d
8 Cir. 2005). She did not subsequently clarify her testimony.
9 Because her claims for asylum, withholding of removal, and
10 CAT relief rely on the same factual predicate, the adverse
11 credibility determination is dispositive. See Paul v.
12 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v.
13 U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).
14
15 For the foregoing reasons, the petition for review is
16 DENIED.
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
19
20
4