09-1834-ag
Balde v. Holder
BIA
Abrams, IJ
A099 683 537
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 3 rd day of February, two thousand ten.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 ROBERT A. KATZMANN,
9 GERARD E. LYNCH,
10 Circuit Judges.
11
12 ______________________________________
13
14 ALSENI BALDE,
15 Petitioner,
16
17 v. 09-1834-ag
18 NAC
19 ERIC H. HOLDER, JR.,
20 UNITED STATES ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Ronald S. Salomon, New York, New
25 York.
1 FOR RESPONDENT: Tony West, Assistant Attorney
2 General; Richard M. Evans, Assistant
3 Director; Sharon M. Clay, Trial
4 Attorney, Office of Immigration
5 Litigation, United States Department
6 of Justice, Washington, D.C.
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED, that the petition for review
10 is DENIED.
11 Alseni Balde, a native and citizen of Guinea, seeks
12 review of a March 31, 2009 order of the BIA affirming the
13 February 22, 2007 decision of Immigration Judge (“IJ”)
14 Steven R. Abrams, which pretermitted Balde’s application for
15 asylum as untimely and denied his application for
16 withholding of removal and relief under the Convention
17 Against Torture (“CAT”), finding petitioner’s testimony
18 incredible. In re Alseni Balde No. A099 683 537 (BIA Mar.
19 31, 2009), aff’g No. A099 683 537 (Immig. Ct. N.Y. City Feb.
20 22, 2007). We assume the parties’ familiarity with the
21 underlying facts and procedural history in this case.
22 Balde does not challenge the pretermission of his
23 asylum application, taking issue only with the IJ’s
24 credibility finding. The Court reviews the agency’s factual
25 findings, including credibility determinations, under the
2
1 substantial evidence standard. Wu Biao Chen v. INS, 344
2 F.3d 272, 275 (2d Cir. 2003)(per curiam). The agency’s
3 findings are “conclusive unless any reasonable adjudicator
4 would be compelled to conclude to the contrary.” 8 U.S.C. §
5 1252(b)(4)(B).
6 Here, substantial evidence supports the agency’s
7 adverse credibility determination. Xiu Xia Lin v. Mukasey,
8 534 F.3d 162, 167 (2d Cir. 2008). The agency reasonably
9 relied on Balde’s inability to testify consistently
10 regarding: (1) the nature of his involvement with the UPR
11 political party; (2) the details of his alleged beating
12 while in custody; (3) when and how often he met his cousin
13 in Canada; and (4) how he entered the United States from
14 Canada. A reasonable fact finder would not be compelled to
15 credit Balde’s explanations for these inconsistencies. See
16 Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
17 Although Balde argues that the discrepancies were too minor
18 to support an adverse credibility determination, under the
19 Real ID Act, which applies to Balde’s application for
20 relief, “an IJ may rely on any inconsistency or omission in
21 making an adverse credibility determination as long as the
22 ‘totality of the circumstances’ establishes that an asylum
3
1 applicant is not credible.” Xiu Xia Lin, 534 F.3d at 167.
2 Finally, we find no support for Balde’s argument that the IJ
3 failed to consider evidence in the record. See Xiao Ji Chen
4 v. U.S. Dep’t of Justice, 471 F.3d 315, 338 n. 17 (2d Cir.
5 2006).
6 Accordingly, substantial evidence supports the IJ’s
7 adverse credibility determination. See 8 U.S.C.
8 §§ 1158(b)(1)(B)(iii), 1252(b)(4)(B). Because all of
9 Balde’s claims for relief were based on the same factual
10 predicate, the agency’s denial of withholding of removal and
11 CAT relief was proper. See Paul v. Gonzales, 444 F.3d 148,
12 156 (2d Cir. 2006).
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, any stay of
15 removal that the Court previously granted in this petition
16 is VACATED, and any pending motion for a stay of removal in
17 this petition is DISMISSED as moot. Any pending request for
18 oral argument in this petition is DENIED in accordance with
19 Federal Rule of Appellate Procedure 34(a)(2), and Second
20 Circuit Local Rule 34(b).
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
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