13-1140
Ali v. Lynch
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 ASUMMARY 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 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 October, two thousand sixteen.
5
6 PRESENT: AMALYA L. KEARSE,
7 DENNIS JACOBS,
8 ROSEMARY S. POOLER,
9 Circuit Judges.
10
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12 SOKANA ALI,
13 Petitioner,
14
15 -v.- 13-1140
16
17 LORETTA LYNCH, UNITED STATES ATTORNEY
18 GENERAL,
19 Respondent.
20
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22
23 FOR PETITIONER: Joshua Bardavid, New York,
24 NY.
25
26 FOR RESPONDENT: David H. Wetmore, Trial
27 Attorney, Office of
1
1 Immigration Litigation
2 (Stuart F. Delery, Assistant
3 Attorney General; John S.
4 Hogan, Senior Litigation
5 Counsel, on the brief),
6 United States Department of
7 Justice, Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, IT IS HEREBY
11 ORDERED, ADJUDGED AND DECREED that the petition for review is
12 DENIED.
13
14 Sokana Ali, a native and citizen of the Congo, seeks review
15 of a March 19, 2013, decision of the BIA affirming the
16 September 8, 2010, decision of Immigration Judge (“IJ”) Gabriel
17 C. Videla, which denied his application for asylum, withholding
18 of removal, and relief under the Convention Against Torture
19 (“CAT”). In re Sokana Ali, No. A079 612 726 (BIA Mar. 19, 2013),
20 aff’g No. A079 612 726 (Immig. Ct. N.Y. City Sept. 8, 2010).
21 We assume the parties’ familiarity with the underlying facts
22 and procedural history in this case.
23 We have considered both the IJ’s and the BIA’s opinions “for
24 the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233,
25 237 (2d Cir. 2008) (citation omitted). The applicable
26 standards of review are well established. See Yanqin Weng v.
27 Holder, 562 F.3d 510, 513 (2d Cir. 2009); Diallo v. INS, 232
28 F.3d 279, 287 (2d Cir. 2000). Ali does not challenge the
29 pretermission of his asylum application as untimely.
30 Moreover, although he states that he met his burden of proof
31 for CAT relief, and lists the legal standards for that form of
32 relief, he does not make any specific argument regarding his
33 eligibility. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541
34 n.1, 545 n.7 (2d Cir. 2005). Accordingly, we only address his
35 eligibility for withholding of removal.
36 Because Ali filed his asylum application in 2002, he is not
37 subject to the requirements of the REAL ID Act. See REAL ID
38 Act of 2005, Pub. L. No. 109-13, Div. B, § 10l(b), (h), 119 Stat.
39 231 (2005); Matter of S-B-, 24 I. & N. Dec. 42, 45 (BIA 2006).
2
1 Sensitive to the petitioner’s post-traumatic stress
2 syndrome, the IJ was careful to state that he did not find that
3 the petitioner was “deliberately incredible.” IJ Ruling at 10.
4 Instead, the IJ concluded that the petitioner’s testimony was
5 “unreliable.” Id. But neither the IJ nor the BIA considered
6 the petitioner credible. Indeed, the IJ explicitly found that
7 Ali “has not demonstrated credible testimony.” Id. The IJ had
8 a substantial basis for this finding. As he noted, “[t]he list
9 of contradictions and omissions -- large and small -- is nearly
10 endless.” Id. at 11.
11 The IJ also noted the lack of corroboration. In the
12 absence of a finding that the petitioner was credible, the IJ
13 was not obliged to apply the rule of Diallo, 232 F.3d at 285-90,
14 and Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 153 (2d Cir. 2003),
15 overruled in part on other grounds by Shi Liang Lin v. U.S. Dep’t
16 of Justice, 494 F.3d 296, 305 (2d Cir. 2007) (in banc), which
17 requires an explanation of why corroboration is reasonably
18 expected and why a petitioner’s excuse for not providing
19 corroboration is not persuasive. As we made clear in Balachova
20 v. Mukasey, 547 F.3d 374, 382 (2d Cir. 2008), that rule applies
21 to “an otherwise credible asylum application.” Nonetheless,
22 the IJ explicitly cited Diallo in discussing the corroborating
23 evidence standard. See IJ Ruling at 10. Furthermore, the IJ
24 specifically referred to the absence of a letter from Ali’s
25 roommate, who purportedly knew the date of Ali’s arrival in the
26 United States, see id. at 11, and to the unexplained omission
27 from Ali’s mother’s letter of facts of which she would
28 reasonably be aware, such as the names of Ali’s brothers, see
29 id., in determining Ali had not provided adequate evidence to
30 support his claim.
31 With the claim for withholding of removal unsupported by
32 credible evidence, indeed based on testimony reasonably found
33 to be unreliable, the claim was properly denied.
34 The BIA reasonably rejected Ali’s claim of a due process
35 violation based on alleged translation errors, noting that Ali
36 had “not revealed what material evidence was omitted due to
37 translation error.” BIA Opinion at 2.
38
3
1 For the foregoing reasons, the petition for review is
2 DENIED.
3 FOR THE COURT:
4 CATHERINE O’HAGAN WOLFE, CLERK
4