Diarra v. Lynch

15-216
Diarra v. Lynch
BIA
Sichel, IJ
A095 515 035
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.

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
19th day of April, two thousand sixteen.

PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
PETER W. HALL,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________

LASSINA DIARRA,
Petitioner,

v. 15-216
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________

FOR PETITIONER: Gary J. Yerman, New York, New York.

FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Anthony
W. Norwood, Senior Litigation
Counsel; Colin J. Tucker, Trial
 Attorney, Office of Immigration
Litigation, United States
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 Lassina Diarra, a native and citizen of the

Ivory Coast, seeks review of a December 31, 2014, decision of

the BIA affirming a July 11, 2013, decision of an Immigration

Judge (“IJ”) denying Diarra’s application for asylum,

withholding of removal, and relief under the Convention Against

Torture (“CAT”). In re Lassina Diarra, No. A095 515 035 (B.I.A.

Dec. 31, 2014), aff’g No. A095 515 035 (Immig. Ct. N.Y. City

July 11, 2013). We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

Under the circumstances of this case, we have considered

both the IJ’s and the BIA’s opinions “for the sake of

completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d

524, 528 (2d Cir. 2006). The applicable standards of review

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are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin

Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

Diarra challenges the agency’s finding that his asylum

application was frivolous, which rendered him permanently

ineligible for any immigration benefits, save withholding of

removal and CAT relief. 8 U.S.C. § 1158(d)(6); 8 C.F.R.

§ 1208.20. To find an asylum application frivolous, an IJ must

(1) give the alien notice of the consequences of filing a

frivolous application; (2) make a specific finding that the

alien knowingly filed a frivolous application; (3) identify

sufficient evidence in the record to support the finding that

a material element of the asylum application was deliberately

fabricated; and (4) allow the alien sufficient opportunity to

account for any discrepancies or implausible aspects of the

claim. 8 C.F.R. § 1208.20; Matter of Y-L, 24 I. & N. Dec. 151,

154 (BIA 2007).

Diarra testified that he arrived in the United States on

May 1, 2007, using a friend’s passport. That date was material:

it made the application timely. Absent timely filing, Diarra

was ineligible for asylum. The agency found that Diarra

deliberately fabricated his date of arrival, citing a
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“US-Visit” document, which showed that the friend, not Diarra,

arrived that day. Diarra does not dispute that the IJ warned

him about the consequences of filing a frivolous application

and made a specific finding. The only issues are whether the

US-Visit document was sufficient to ground the finding and

whether Diarra had an adequate opportunity to explain the

conflict between that document and his application.

Diarra argues that consideration of the US-Visit document

was “fundamentally unfair,” in violation of due process, and

therefore cannot ground a frivolous application finding. He

challenges the document’s trustworthiness. According to the

Government, the US-Visit document is driven by fingerprints,

which are unique, but the document here contained photographs

of two men (neither one was Diarra). He cites the fact that

the document was not authenticated as required by the two

relevant hearsay exceptions, for business records and public

records, Fed. R. Evid. 803(6), 803(8), and by agency regulation,

8 C.F.R. § 1287.6. Diarra also contends that by “springing”

the document on him at the last minute, he had no opportunity

to prepare a defense.

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 “The government is not required to comply with either the

requirements of the Federal Rules of Evidence or the heightened

procedural protections of a criminal trial when seeking to have

documentary evidence . . . admitted in a removal proceeding.”

Zhen Nan Lin v. U.S. Dep’t of Justice, 459 F.3d 255, 268 (2d

Cir. 2006). The due process test for admissibility of evidence

in a deportation hearing “is whether the evidence is probative

and whether its use is fundamentally fair.” Felzcerek v. INS,

75 F.3d 112, 115 (2d Cir. 1996) (internal citation and

punctuation omitted). “In the evidentiary context, fairness

is closely related to the reliability and trustworthiness of

the evidence.” Id.

Diarra challenges the US-Visit document as unreliable,

arguing that it purported to rely on fingerprints, which are

unique, but inexplicably contained photographs of two different

men. As the Government notes, Diarra did not exhaust this

argument before the BIA, and so we decline to consider it. Lin

Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007)

(explaining that this Court’s review is limited to “those issues

that formed the basis for” the BIA decision).

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 That leaves questions of procedure: whether the Government

was required to call a witness to authenticate the US-Visit

document, and whether Diarra had adequate notice of the

document. There was no due process violation on either score.

Diarra cites Federal Rules of Evidence 803(6) (business

record exception) and 803(8) (public records exception), which

require authentication. But the rules of evidence do not apply

in removal proceedings. Felzcerek, 75 F.3d at 116.

He also cites an agency regulation, 8 C.F.R. § 1287.6,

which provides that “an official record or entry therein, when

admissible for any purpose, shall be evidenced by an official

publication thereof, or by a copy attested by the official

having legal custody of the record or by an authorized deputy.”

8 C.F.R. § 1287.6(a). Here, no witness testified to the

authenticity of the US-Visit document. However, the

Government attorney explained, on the record, that she searched

a Department of Homeland Security (“DHS”) database for the visa

and passport number on which Diarra claimed to have entered,

and that the US-Visit document was the result. The Government

attorney thus had “legal custody” of the document by virtue of

her access to the DHS database, and the IJ had the discretion
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to find that her description of how she retrieved the document

authenticated it. 8 C.F.R. § 1240.1(c)(“The immigration judge

shall receive and consider material and relevant evidence, rule

upon objections, and otherwise regulate the course of the

hearing.”).

The second question is whether Diarra was deprived the

opportunity to prepare a defense. He was not. After Diarra

testified to entering the United States on May 1, 2007, the IJ

asked the Government to ascertain whether DHS documents

reflected that entry. The IJ took an extended lunch break for

Diarra to review his written asylum application with his

attorney and for the Government attorney to retrieve the

relevant information from the DHS database. After the break,

Diarra declined to correct or amend his written application,

and the IJ warned him about the consequences of filing a

frivolous asylum application. The Government then confronted

Diarra with the US-Visit document and gave him the chance to

explain the dramatic discrepancy between it and his testimony.

Cf. Ming Shi Xue v. BIA, 439 F.3d 111, 123 (2d Cir. 2006) (deeming

it “appropriate to require administrative decisionmakers to

afford applicants an opportunity to address such latent or
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otherwise not obvious or ‘dramatic’ discrepancies before

depending on them as a basis for a determination of no

credibility”). At the end of the hearing, the IJ invited

Diarra’s counsel to submit a written closing statement,

advising that she was “leaning” toward imposing a frivolous

filing bar. The attorney declined. Diarra thus “had

sufficient opportunity to account for any discrepancies or

implausible aspects” of his claim. 8 C.F.R. § 1208.20.

Adverse Credibility Determination

The next question is whether substantial evidence supports

the agency’s adverse credibility determination against Diarra.

Under the REAL ID Act of 2005, the agency may, in light of “the

totality of the circumstances,” base an adverse credibility

determination on an asylum applicant’s “demeanor, candor, or

responsiveness,” the plausibility of his account, and

inconsistencies in his statements, “without regard to whether”

those inconsistencies go “to the heart of the applicant’s

claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey,

534 F.3d 162, 165 (2d Cir. 2008). Under the “substantial

evidence” standard of review, “we defer . . . to an IJ’s

credibility determination unless, from the totality of the
8
circumstances, it is plain that no reasonable fact-finder could

make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d

at 165, 167.

The adverse credibility determination here rests on

substantial evidence: the US-Visit document. That document

cast into doubt Diarra’s testimony that he arrived in the United

States in 2007 and, in turn, his claim to have fled the Ivory

Coast because his father’s store was ransacked that year.

The IJ cited two other inconsistencies in finding that

Diarra was not credible. One was that Diarra’s “asylum

application failed to indicate that he was arrested” in the

Ivory Coast. But the application did describe an arrest.

The second inconsistency cited by the IJ was that Diarra’s

application “states that he was a member of the RDR,” a political

party in the Ivory Coast, but he “testified repeatedly that he

was never a member of any political party.” On this score, the

application was muddled. In it, Diarra twice denied being a

member of a political party. But then, after describing

harassment suffered by his family, it said, “All this because

my membership with the Rally of the Republicans (RDR) since

September 2002.” When confronted with this statement, Diarra
9
explained that the application’s preparer made a mistake. This

is a plausible explanation--that one sentence contradicted the

remainder of Diarra’s application and his testimony at the

hearing. But under the highly deferential standard of review,

we cannot conclude that the agency was compelled to accept it.

Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (explaining

that the agency is not required to credit an explanation that

is merely plausible or possible). Moreover, contrary to

Diarra’s argument, the IJ did “actively appraise” the

explanation: she rejected it.

The US-Visit document cast doubt on the timeliness of

Diarra’s asylum application and the root of his claim. The

totality of the circumstances therefore supports the adverse

credibility determination. Because all forms of relief

(asylum, withholding of removal, and CAT relief) were based on

the same factual predicate, the adverse credibility

determination is dispositive of all three. Paul v. Gonzales,

444 F.3d 148, 156-57 (2d Cir. 2006). We decline to reach the

agency’s alternative finding that Diarra failed to meet his

burden of proof. INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As

a general rule courts and agencies are not required to make
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findings on issues the decision of which is unnecessary to the

results they reach.”).

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, any pending motion

for a stay of removal in this petition is DISMISSED as moot.

FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk

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