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