Gumaneh v. Lynch

15-1048 Gumaneh v. Lynch BIA Christensen, IJ A094 230 713 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 Appeals for 2 the Second Circuit, held at the Thurgood Marshall United States 3 Courthouse, 40 Foley Square, in the City of New York, on the 4 26th day of July, two thousand sixteen. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 DEBRA ANN LIVINGSTON, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 MUHAMED GUMANEH, 14 Petitioner, 15 16 v. 15-1048 17 NAC 18 LORETTA E. LYNCH, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Thomas V. Massucci, New York, N.Y. 24 25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 26 Assistant Attorney General; Shelley 27 R. Goad, Assistant Director; Monica 28 Antoun, Trial Attorney, Office of 29 Immigration Litigation, United 30 States Department of Justice, 31 Washington, D.C. 1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED that the petition for review is 4 DENIED. 5 Petitioner Muhamed Gumaneh, a native and citizen of the 6 Gambia, seeks review of a March 17, 2015, decision of the BIA, 7 affirming a February 26, 2013, decision of an Immigration Judge 8 (“IJ”) denying Gumaneh’s application for asylum, withholding 9 of removal, and relief under the Convention Against Torture 10 (“CAT”). In re Muhamed Gumaneh, No. A094 230 713 (B.I.A. Mar. 11 17, 2015), aff’g No. A094 230 713 (Immig. Ct. N.Y. City Feb. 12 26, 2013). We assume the parties’ familiarity with the 13 underlying facts and procedural history in this case. 14 Under the circumstances of this case, we review both the 15 IJ’s and BIA’s decisions. Yun-Zui Guan v. Gonzales, 432 F.3d 16 391, 394 (2d Cir. 2005). The applicable standards of review 17 are well established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin 18 v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). 19 For asylum applications like Gumaneh’s, governed by the 20 REAL ID Act, the agency may, “[c]onsidering the totality of the 21 circumstances,” base an adverse credibility determination on 22 an asylum applicant’s “demeanor, candor, or responsiveness,” 23 the plausibility of his account, and inconsistencies in his 2 1 statements, “without regard to whether” they go “to the heart 2 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu 3 Xia Lin, 534 F.3d at 163-64. “We defer . . . to an IJ’s 4 credibility determination unless, from the totality of the 5 circumstances, it is plain that no reasonable fact-finder could 6 make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d 7 at 167. As discussed below, substantial evidence supports the 8 credibility determination. 9 The agency reasonably relied on the inconsistencies among 10 Gumaneh’s application, testimony, and supporting evidence 11 about the date of his mother’s death. See Xiu Xia Lin, 534 F.3d 12 at 167. Gumaneh testified that his mother died in the late 13 ‘90s; his corrected application provided the same. But his 14 sister’s birth certificate, dated 2001, was signed by his 15 mother. When asked how his mother could have signed the birth 16 certificate, if she had died years earlier, Gumaneh stated that 17 the birth certificate was “wrong” and that he did not review 18 it because it was mailed directly to his lawyer. The agency 19 was not required to credit this explanation. See Majidi v. 20 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005). 21 The adverse credibility determination was further 22 supported by the inconsistencies surrounding how Gumaneh 23 learned of his father’s family’s threats. See Xiu Xia Lin, 534 3 1 F.3d at 163-64. Gumaneh testified that he never had contact 2 with his father’s family, after helping his sister escape female 3 genital mutilation (“FGM”), and that he only learned of the 4 threats through friends. But Gumaneh stated in his application 5 that his father’s family had threatened him directly. When 6 asked how his family could have directly threatened him, if they 7 had not been in contact, Gumaneh explained: “I’m not 8 communicating with them. But, they’ll call me. . . .” 9 Although Gumaneh argues that his explanation was “plausible,” 10 “[a] petitioner must do more than offer a plausible explanation 11 for his inconsistent statements to secure relief; he must 12 demonstrate that a reasonable fact-finder would be compelled 13 to credit his testimony.” Majidi, 430 F.3d at 80. 14 The adverse credibility determination was also properly 15 based on the inconsistencies in the record concerning when 16 Gumaneh lived in Senegal. See Xiu Xia Lin, 534 F.3d at 163-64. 17 Gumaneh initially testified that he moved to Senegal in 2000 18 and stayed for “two to three years,” but later testified that 19 he was living in Senegal in 2005 when he learned his sister was 20 threatened with FGM. Gumaneh also stated in his application 21 that he was living in Senegal when he first learned his sister 22 had been threatened with FGM. When asked to explain, Gumaneh 23 stated that he returned to Gambia and then went back to Senegal 4 1 and that he had omitted this information from his initial 2 testimony because his lawyer didn’t ask if he went back or not. 3 The agency was not required to credit that explanation, Majidi, 4 430 F.3d at 80, and did not err in relying on these 5 inconsistencies. 6 The agency also reasonably relied on Gumaneh’s failure to 7 corroborate. Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 8 2007). Gumaneh contends that his testimony was credible and 9 did not need to be rehabilitated. As discussed above, however, 10 the agency had ample grounds for questioning his credibility. 11 While Gumaneh does not explicitly challenge the agency’s 12 justifications for according his corroborating evidence 13 minimal weight, the agency did not err in its treatment of this 14 evidence. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 15 342 (2d Cir. 2006) (holding that the weight given corroborating 16 evidence lies largely with discretion of agency); see also Y.C. 17 v. Holder, 741 F.3d 324, 334 (2d Cir. 2013) (deferring to 18 agency’s decision to accord little weight to a relative’s 19 letter). 20 In light of the foregoing inconsistencies and Gumaneh’s 21 lack of corroboration, the totality of the circumstances 22 supports the agency’s adverse credibility determination. See 23 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. 5 1 The agency therefore did not err in denying asylum, withholding 2 of removal, and CAT relief because all claims shared the same 3 factual predicate. Paul v. Gonzales, 444 F.3d 148, 156-57 (2d 4 Cir. 2006). 5 For the foregoing reasons, the petition for review is 6 DENIED. As we have completed our review, any stay of removal 7 that the Court previously granted in this petition is VACATED, 8 and any pending motion for a stay of removal in this petition 9 is DISMISSED as moot. Any pending request for oral argument 10 in this petition is DENIED in accordance with Federal Rule of 11 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 12 34.1(b). 13 FOR THE COURT: 14 Catherine O’Hagan Wolfe, Clerk 6