Barry v. Holder

08-4057-ag
Barry v. Holder
BIA
Chew, IJ
A095 361 570
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
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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.

At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 14 th day of January, two thousand ten.
PRESENT:
ROBERT D. SACK,
ROBERT A. KATZMANN,
Circuit Judges,
DENNY CHIN,
District Judge. 1
_______________________________________

BAHIRU BARRY,
Petitioner,

v. 08-4057-ag

ERIC H. HOLDER, Jr., U.S. ATTORNEY
GENERAL, 2
Respondent.
_______________________________________

1
Honorable Denny Chin, United States District Judge
for the Southern District of New York, sitting by
designation.
2
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.
FOR PETITIONER: Gerald Karikari, New York, N.Y.

FOR RESPONDENT: Brendan P. Hogan (Michael F. Hertz,
Acting Assistant Attorney General,
Cindy S. Ferrier, Senior Litigation
Counsel, on the brief), Office of
Immigration Litigation, Civil
Division, United States Department
of Justice, Washington, D.C.

UPON DUE CONSIDERATION of this petition for review of a

decision of the Board of Immigration Appeals (“BIA”), it is

hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

review is DENIED.

Petitioner Bahiru Barry, a native and citizen of Sierra

Leone, seeks review of a July 21, 2008 order of the BIA

affirming the October 24, 2005 decision of Immigration Judge

(“IJ”) George T. Chew, denying his application for asylum,

withholding of removal, and relief under the Convention

Against Torture (“CAT”). In re Bahiru Barry, No. A095 361

570 (B.I.A. July 21, 2008), aff’g No. A095 361 570 (Immig.

Ct. N.Y. City Oct. 24, 2005). We assume the parties’

familiarity with the underlying facts and procedural history

of the case. 3

3
Although we allowed petitioner’s counsel to submit
an amended brief, we are troubled by the poor quality of
the brief he filed in the first instance. Petitioner is
a native of Sierra Leone and alleges persecution on
account of political opinion. Counsel’s initial brief,

2
 Where, as here, the BIA adopts the decision of the IJ

and supplements the IJ’s decision, we review the decision of

the IJ as supplemented by the BIA. See Yan Chen v.

Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the

agency’s factual findings, including adverse credibility

determinations, under the substantial evidence standard.

8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey,

519 F.3d 90, 95 (2d Cir. 2008). We review de novo questions

of law and the application of law to undisputed fact. See

Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008). Because

Barry filed his asylum application before May 11, 2005, the

amendments made to the Immigration and Nationality Act by

the REAL ID Act of 2005 do not apply to his asylum

application. See Pub. L. No. 109-13, § 101(h)(2), 119 Stat.

231, 305 (2005). In pre-REAL ID Act cases, an adverse

credibility determination must “bear a legitimate nexus” to

the applicant’s asylum claim. Secaida-Rosales v. INS, 331

F.3d 297, 307 (2d Cir. 2003).

however, referred to an individual from China who alleged
persecution on account of religion. The use of
boilerplate language is an acceptable, even desirable,
component of legal writing. However, counsel’s initial
brief contained passages that referred to another
individual’s asylum claim. Briefing of this sort is
unacceptable. Should counsel submit briefs of this
quality in the future, he will be referred to the Court’s
Grievance Panel.

3
 As an initial matter, we decline to consider Barry’s

unexhausted assertion that his limited education and command

of the English language explain the inconsistent testimony

that he offered below. Cf. Lin Zhong v. U.S. Dep’t of

Justice, 480 F.3d 104, 119-20 (2d Cir. 2007). Although

Barry offered that explanation before the IJ, he did not do

so before the BIA, claiming instead that he had post-

traumatic stress disorder. Barry cannot now assert his

limited education argument because the BIA never had the

opportunity to consider it. 4 See id. Furthermore, as the

Government asserts, because Barry fails to challenge in his

brief the BIA’s rejection of his argument that translation

errors account for the discrepancies, we deem that argument

waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 542

n.1 (2d Cir. 2005).

The Government further argues that we should decline to

review Barry’s argument that the discrepancies the IJ

identified were too minor to support an adverse credibility

determination because Barry failed to raise this argument

before the BIA. It is well established, however, that where

4
Barry no longer asserts that “mental defect” caused
him to testify inconsistently, and does not challenge the
BIA’s refusal to consider that argument for the first
time on appeal.

4
the BIA addresses claims or issues not raised by a

petitioner, those issues are considered exhausted and may be

reviewed by this Court. See Xian Tuan Ye v. DHS, 446 F.3d

289, 296-97 (2d Cir. 2006) (per curiam); Waldron v. INS, 17

F.3d 511, 515 n.7 (2d Cir. 1994). Here, the BIA explicitly

found that the “identified discrepancies . . . go to the

heart of [Barry’s] asylum claim,” thus permitting us to

consider Barry’s arguments in this respect on appeal.

Under the substantial evidence standard, we are

required to treat the IJ’s factual findings, including his

adverse credibility determinations, as “conclusive unless

any reasonable adjudicator would be compelled to conclude to

the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Corovic,

519 F.3d at 95. Here, it is undisputed that Barry testified

that his father was murdered on February 9, 1999, but later

stated on cross-examination that the murder occurred on

February 19 of that year. Barry also submitted documentary

evidence indicating that his father died on February 4,

1999, while his original and supplemental asylum

applications stated that his father died on January 6, 1999.

The BIA concluded that these discrepancies went “to the

heart of [Barry’s] asylum claim,” and that Barry failed to

“provide a sufficient explanation on appeal.”

5
 Barry here argues that these discrepancies were minor,

and thus insufficient to support the IJ’s adverse

credibility determination, particularly given that the

incident occurred over ten years ago, and, at most, involved

a six-week discrepancy. These arguments are not without

some force. Indeed, we have previously observed that

“[w]here an applicant’s testimony is generally consistent,

rational, and believable,” certain disparities, including a

six-month discrepancy as to the date of arrest, “need not be

fatal to credibility, especially if the errors are

relatively minor and isolated.” Diallo v. INS, 232 F.3d

279, 288 (2d Cir. 2000). Nothing in the record indicates

that Barry had any motivation to lie as to the date of his

father’s death, and it strains credulity that he would

intentionally do so in the face of contradictory documentary

evidence.

In the end, though, we cannot conclude that the IJ

erred in making its adverse credibility determination.

Specifically, as noted, the IJ identified multiple

discrepancies as to the timing of the one event at the heart

of Barry’s claim – his father’s murder. The IJ concluded

that these discrepancies were neither “isolated” nor

“minor,” and a reasonable adjudicator would not be compelled

to conclude to the contrary.

6
 Indeed, the IJ was required to evaluate the date

discrepancies in the context of the time period in which

they occurred, and in light of the existence (or lack

thereof) of other events relevant to Barry’s application.

Alvardo-Carillo v. INS, 251 F.3d 44, 51 (2d Cir. 2001).

Where, as here, the date discrepancies relate to the sole

event cited in support of a petitioner’s asylum application,

we cannot conclude, under the applicable standard of review,

that it was unreasonable for the IJ to determine that such

discrepancies are sufficient to support an adverse

credibility determination. See, e.g., Zhou Yun Zhang v.

INS, 386 F.3d 66, 77 (2d Cir. 2004) (noting that date

inconsistencies relating to when petitioner learned of

“distressing information” are “not the sort of ‘minor and

isolated’ discrepancies so plainly immaterial” to an asylum

claim); see also Kone v. Holder, 08-1901-ag, 2009 U.S. App.

LEXIS 22492, at *2-3 (2d Cir. Oct. 14, 2009) (summary order)

(finding that one-month discrepancy in dates provided

support for the IJ’s adverse credibility finding, where “the

timing of [petitioner’s] detention and his father’s death

went to the heart of his claim for asylum”).

7
 Because the only evidence of a threat to Barry’s life

or freedom depends upon his credibility, the adverse

credibility determination in this case necessarily precludes

success on his claims for asylum, withholding of removal,

and CAT relief because all three claims were based on the

same factual predicate. See Paul v. Gonzales, 444 F.3d 148,

156 (2d Cir. 2006); Wu Biao Chen v. INS, 344 F.3d 272, 276

(2d Cir. 2003).

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, any stay of

removal that the Court previously granted in this petition

is VACATED, and the pending motion for a stay of removal in

this petition is DISMISSED as moot.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk

By:____________________________

8