Diallo v. Holder

08-5806-ag Diallo v. Holder BIA LaForest, IJ A099 083 116 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 1 st day of February, two thousand ten. 5 6 PRESENT: 7 JOSEPH M. McLAUGHLIN, 8 ROBERT D. SACK, 9 PETER W. HALL, 10 Circuit Judges. 11 ___________________________________ 12 13 MAMADOU MOUSTAPHA DIALLO, 14 Petitioner, 15 16 v. 08-5806-ag 17 NAC 18 ERIC H. HOLDER JR., 1 19 U.S. ATTORNEY GENERAL, 20 Respondent. 21 ___________________________________ 22 23 24 25 1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Eric H. Holder Jr. is automatically substituted for former Attorney General Michael B. Mukasey as respondent in this case. 1 FOR PETITIONER: Ronald S. Salomon, New York, New 2 York. 3 4 FOR RESPONDENT: Tony West, Assistant Attorney 5 General, Civil Division, Ernesto H. 6 Molina Jr., Assistant Director, 7 Vanessa Otero Lefort, Attorney, 8 Office of Immigration Litigation, 9 U.S. Department of Justice, 10 Washington, D.C. 11 12 UPON DUE CONSIDERATION of this petition for review of a 13 Board of Immigration Appeals (“BIA”) decision, it is hereby 14 ORDERED, ADJUDGED, AND DECREED that the petition for review 15 is DENIED. 16 Petitioner Mamadou Moustapha Diallo, a native and 17 citizen of Guinea, seeks review of an October 31, 2008 order 18 of the BIA affirming the May 16, 2007 decision of 19 Immigration Judge (“IJ”) Brigitte LaForest denying Diallo’s 20 application for asylum, withholding of removal, and relief 21 under the Convention Against Torture (“CAT”). In re Mamadou 22 Moustapha Diallo, No. A099 083 116 (B.I.A. Oct. 31, 2008), 23 aff’g No. A099 083 116 (Immig. Ct. N.Y. City May 16, 2007). 24 We assume the parties’ familiarity with the underlying facts 25 and procedural history in this case. 26 When the BIA issues an opinion that fully adopts the 27 IJ’s decision, we review the IJ’s decision. See Mei Chai Ye 28 v. U.S. Dep’t of Justice, 489 F.3d 517, 523 (2d Cir. 2007). -2- 1 We review the agency’s factual findings, including adverse 2 credibility determinations, under the substantial evidence 3 standard. See 8 U.S.C. § 1252(b)(4)(B); see, e.g., Corovic 4 v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008). We review de 5 novo questions of law and the application of law to 6 undisputed fact. Passi v. Mukasey, 535 F.3d 98, 101 (2d 7 Cir. 2008). 8 We conclude that substantial evidence supports the IJ’s 9 determination that Diallo was not credible. As the IJ 10 found: (1) Diallo’s testimony that his nephew was unable to 11 find out the name of the prison in which his wife was 12 detained was inconsistent with the letter from his nephew 13 stating that his wife was detained at the Central House of 14 the Surete of Conakry; (2) Diallo’s testimony that he joined 15 the Union for Progress and Renewal-North American Federation 16 (“UPR-NAF”) when he first arrived in the United States was 17 inconsistent with the letter from UPR-NAF stating that he 18 joined the Federation in May 2007; and (3) that letter bears 19 the wrong name for Diallo. 20 The IJ reasonably found that these inconsistencies go 21 to the heart of his claim for asylum. See Secaida-Rosales 22 v. INS, 331 F.3d 297, 307-08 (2d Cir. 2003). The wrong name -3- 1 on the UPR-NAF letter and the inconsistency between that 2 letter and his testimony regarding when he joined the 3 Federation call into question whether he is actually a 4 member of that organization and bear directly on whether the 5 Guinean authorities would seek to persecute him. Moreover, 6 the inconsistency between his testimony and his nephew’s 7 letter concerning his wife’s whereabouts renders his wife’s 8 detention questionable, and his wife’s arrest forms a 9 significant part of Diallo’s claim that he fears returning 10 to Guinea. 11 Because the only evidence of a threat to Diallo’s life 12 or freedom depended upon his credibility, the adverse 13 credibility determination in this case necessarily precludes 14 success on his claims for withholding of removal and CAT 15 relief, as all three claims were based on the same factual 16 predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 17 2006). 18 For the foregoing reasons, the petition for review is 19 DENIED. 20 FOR THE COURT: 21 Catherine O’Hagan Wolfe, Clerk 22 23 24 25 -4-