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