Balde v. Sessions

15-3980 Balde v. Sessions BIA Christensen, IJ A200 819 193 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 16th day of June, two thousand seventeen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 GERARD E. LYNCH, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ 12 13 MAMADOU-SOTO BALDE, 14 Petitioner, 15 16 v. 15-3980 17 NAC 18 JEFFERSON B. SESSIONS III, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Andy Wong, Washington, D.C. 24 25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 26 Assistant Attorney General; Stephen 27 J. Flynn, Assistant Director; Imran  The Clerk of Court is respectfully directed to amend the official caption to conform to the above. 1 R. Zaidi, Attorney; Tiffany L. 2 Donohue, Law Clerk, Office of 3 Immigration Litigation, United 4 States Department of Justice, 5 Washington, D.C. 6 7 UPON DUE CONSIDERATION of this petition for review of a Board 8 of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, 9 ADJUDGED, AND DECREED that the petition for review is DENIED. 10 Petitioner Mamadou-Soto Balde, a native and citizen of 11 Guinea, seeks review of a December 2, 2015 decision of the BIA 12 affirming a July 31, 2014 decision of an Immigration Judge (“IJ”) 13 denying Balde’s application for asylum, withholding of removal, 14 and relief under the Convention Against Torture (“CAT”). In re 15 Mamadou-Soto, No. A200 819 193 (B.I.A. Dec. 2, 2015), aff’g No. 16 A200 819 193 (Immig. Ct. N.Y. City July 31, 2014). We assume 17 the parties’ familiarity with the underlying facts and 18 procedural history in this case. 19 Under the circumstances of this case, we have reviewed the 20 IJ’s decision as modified by the BIA (i.e., considering only 21 those grounds for the credibility determination that the BIA 22 reached). See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 23 520, 522 (2d Cir. 2005). The applicable standards of review are 24 well established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. 25 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). 2 1 The governing REAL ID Act credibility standard provides that 2 the agency must “[c]onsider[] the totality of the 3 circumstances,” and may base a credibility finding on an 4 applicant’s “demeanor, candor, or responsiveness,” the 5 plausibility of his account, and inconsistencies in his or his 6 witness’s statements, “without regard to whether” they go “to 7 the heart of the applicant’s claim.” 8 U.S.C. 8 § 1158(b)(1)(B)(iii); see Xiu Xia Lin, 534 F.3d at 163-64. “We 9 defer . . . to an IJ’s credibility determination unless, from 10 the totality of the circumstances, it is plain that no reasonable 11 fact-finder could make such an adverse credibility ruling.” Xiu 12 Xia Lin, 534 F.3d at 167. Further, “[a] petitioner must do more 13 than offer a plausible explanation for his inconsistent 14 statements to secure relief; he must demonstrate that a 15 reasonable fact-finder would be compelled to credit his 16 testimony.” Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) 17 (internal quotations marks omitted). As discussed below, 18 substantial evidence supports the agency’s determination that 19 Balde was not credible. 20 First, the agency did not err by relying on Balde’s credible 21 fear interview record. We have held that a credible fear 22 interview warrants “close examination” because it may “be 23 perceived as coercive” by the alien or fail to “elicit all of 3 1 the details supporting an asylum claim.” Ming Zhang v. Holder, 2 585 F.3d 715, 724-25 (2d Cir. 2009). But “[w]here the record 3 of a credible fear interview displays the hallmarks of 4 reliability, it appropriately can be considered in assessing 5 an alien’s credibility.” Id. at 725. The interview here 6 exhibited many of the hallmarks of reliability we have 7 identified. See id. (citing Ramsameachire v. Ashcroft, 357 F.3d 8 169, 180 (2d Cir. 2004)). A French interpreter was used (and 9 Balde listed French on his asylum application as a language he 10 spoke fluently); the interviewer asked Balde questions designed 11 to elicit an asylum and CAT claim; the questions and answers 12 were memorialized in a typewritten document; and at no point 13 did Balde appear to have difficulty answering the interviewer’s 14 questions. Because the record of the interview is reliable, the 15 agency was entitled to consider it in assessing Balde’s 16 credibility. Id. Balde argues that the BIA ignored his 17 arguments as to why the interview record is unreliable. While 18 the BIA did not specifically address each of Balde’s arguments, 19 these same arguments were rejected by the IJ, and the BIA 20 reasonably affirmed the IJ’s conclusion that the interview 21 record was reliable. 22 Second, the agency reasonably relied on the inconsistency 23 between Balde’s credible fear interview statements and testimony 4 1 about his involvement with the Union of Democratic Forces of 2 Guinea (“UFDG”). See Xiu Xia Lin, 534 F.3d at 163-64. During 3 his interview, Balde was asked whether he held “any position 4 or title within [the UFDG],” and he responded that he “was a 5 simple militant and member of the party.” Balde testified, 6 however, that he held a “position” in the party as “the secretary 7 for information in the Dixinn community.” When asked about this 8 discrepancy, Balde responded that the asylum officer “did not 9 ask [him] what position [he held] or whether [he] held a position 10 with [the] party.” The IJ reasonably rejected this explanation 11 because it was contradicted by the interview record. Majidi, 12 430 F.3d at 80. 13 Third, the agency reasonably relied on the inconsistencies 14 among Balde’s credible fear interview, testimony, and asylum 15 application about whether he was ever physically harmed in 16 Guinea. See Xiu Xia Lin, 534 F.3d at 163-64. Balde responded 17 “No” when asked during his credible fear interview if he had 18 ever been “harmed or mistreated” or “beaten or tortured” in 19 Guinea. In his asylum application, however, Balde stated that 20 he was beaten with rubber batons by the military at a strike 21 protest, and he testified that he was beaten with sticks and 22 guns. When confronted with these discrepancies, Balde 23 responded that he began to explain to the asylum officer what 5 1 happened, but that the officer directed him to answer with only 2 yes or no. The IJ was not compelled to accept this explanation 3 because, as the IJ observed, the transcript of the record shows 4 that Balde gave comprehensive answers beyond “yes” or “no” 5 several times during his interview, and Balde’s explanation also 6 does not account for why he did not answer “Yes” when asked during 7 his interview if he had ever been harmed or beaten. See Majidi, 8 430 F.3d at 80. 9 Fourth, the agency reasonably relied on the inconsistencies 10 between Balde’s testimony and asylum application regarding how 11 he obtained the incriminating videos of the military. See Xiu 12 Xia Lin, 534 F.3d at 163-64. In his asylum application, Balde 13 stated that he obtained videos of the military killing members 14 of the political opposition at the stadium in Conakry because 15 he owned an internet café and several people who witnessed the 16 massacre came there to upload their videos. However, Balde 17 testified that he obtained the videos from members of the 18 military who came to his internet café, and he later testified 19 that he filmed some of the videos himself. When asked about these 20 discrepancies, Balde responded that he did not state in his 21 application that he filmed some of the videos because he was 22 not asked and that the videos he was referring to in his 23 application were filmed on a different day than the massacre. 6 1 The IJ was not compelled to accept these varying explanations. 2 See Majidi, 430 F.3d at 80. 3 In his brief, Balde asserts several new explanations for 4 the inconsistencies cited above. However, we decline to 5 consider these explanations because they were not presented to 6 the IJ or BIA. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 7 104, 122 (2d Cir. 2007). 8 Finally, the agency reasonably found Balde’s corroborating 9 evidence insufficient to rehabilitate his credibility because 10 his supporting letters were inconsistent with his testimony and 11 their authors were not available for cross-examination. See 12 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (an 13 applicant’s failure to corroborate testimony may bear on 14 credibility, either because the absence of particular evidence 15 is viewed as suspicious, or “because the absence of corroboration 16 in general makes an applicant unable to rehabilitate testimony 17 that has already been called into question”). Balde does not 18 meaningfully challenge this finding in his brief and has 19 therefore waived review of the agency’s bases for discounting 20 his evidence. Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 21 1998) (“Issues not sufficiently argued in the briefs are 22 considered waived and normally will not be addressed on 23 appeal.”). 7 1 Given the foregoing inconsistencies among Balde’s 2 testimony, asylum application, and credible fear interview, and 3 his insufficient corroboration, the totality of the 4 circumstances supports the agency’s credibility ruling. Xiu 5 Xia Lin, 534 F.3d at 165-66. A reasonable adjudicator would not 6 be compelled to conclude otherwise. Id. at 167. The 7 credibility finding is dispositive of asylum, withholding of 8 removal, and CAT relief because all three claims are based on 9 the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 10 156-57 (2d Cir. 2006). 11 For the foregoing reasons, the petition for review is 12 DENIED. 13 FOR THE COURT: 14 Catherine O’Hagan Wolfe, Clerk 8