16-1933
Boota v. Sessions
BIA
Wright, IJ
A073 556 209
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 13th day of October, two thousand seventeen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RAYMOND J. LOHIER, JR.,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 MALIK BOOTA, AKA MOHAMMAD BOOFA,
14 AKA MALIK MOHAMMAD, AKA ABDUL
15 RAUF,
16 Petitioner,
17
18 v. 16-1933
19 NAC
20 JEFFERSON B. SESSIONS III, UNITED
21 STATES ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: Amy Nussbaum Gell, Gell & Gell, New
26 York, New York.
27
28 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
29 Assistant Attorney General; Jesse
30 Matthew Bless, Senior Litigation
31 Counsel; Barbara Joan Leen, Trial
1 Attorney, Office of Immigration
2 Litigation, United States
3 Department of Justice, Washington,
4 DC.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review is
9 DENIED.
10 Petitioner Malik Boota, a native and citizen of Pakistan,
11 seeks review of a May 19, 2016, decision of the BIA, affirming
12 a February 26, 2015, decision of an Immigration Judge (“IJ”)
13 denying his application for asylum, withholding of removal, and
14 relief under the Convention Against Torture (“CAT”). In re
15 Malik Boota, No. A073 556 209 (B.I.A. May 19, 2016), aff’g No.
16 A073 556 209 (Immig. Ct. N.Y. City Feb. 26, 2015). 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. See Xue Hong Yang v. U.S.
21 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The
22 applicable standards of review are well established. See 8
23 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
24 165-66 (2d Cir. 2008).
2
1 For asylum applications like Boota’s, governed by the REAL
2 ID Act, the agency may, “[c]onsidering the totality of the
3 circumstances,” base a credibility finding on an asylum
4 applicant’s “candor,” and on inconsistencies in an applicant’s
5 statements and documentary evidence, “without regard to
6 whether” those inconsistencies go “to the heart of the
7 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
8 Lin, 534 F.3d at 163-64. “We defer . . . to an IJ’s
9 credibility determination unless, from the totality of the
10 circumstances, it is plain that no reasonable fact-finder could
11 make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d
12 at 167. Substantial evidence supports the adverse credibility
13 determination.
14 As an initial matter, Boota’s concession that he provided
15 false information in his 1995 application is sufficient,
16 standing alone, to sustain the adverse credibility
17 determination. See Siewe v. Gonzales, 480 F.3d 160, 170 (2d
18 Cir. 2007) (“[A] single false document or a single instance of
19 false testimony may (if attributable to petitioner) infect the
20 balance of the alien’s uncorroborated or unauthenticated
21 evidence.”). In addition, the record reflects a number of
22 inconsistencies and a lack of candor that further undermine
3
1 Boota’s credibility. Accordingly, as we discern no error in
2 the agency’s adverse credibility determination, the petition
3 for review is denied.
4 The agency reasonably relied on Boota’s inconsistent
5 testimony regarding his presence in the United States. Boota
6 testified that he did not leave the United States between 1994
7 and 2002 after he lost his 1994 asylum case and was ordered
8 excluded. However, his 1995 asylum application states that he
9 entered the United States from Pakistan in January 1995. When
10 confronted with this discrepancy, Boota testified to the date
11 in the 1995 application, but asserted that he had destroyed the
12 passport he entered on. This lack of evidence makes Boota
13 unable to resolve the inconsistency. See Biao Yang v.
14 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The agency was not
15 compelled to credit Boota’s explanation that he forgot why he
16 lied about his 1995 entry because it does not resolve any
17 discrepancy. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.
18 2005) (“A petitioner must do more than offer a plausible
19 explanation for his inconsistent statements to secure relief;
20 he must demonstrate that a reasonable fact-finder would be
21 compelled to credit his testimony.” (internal citation
22 omitted)).
4
1 Boota’s 1995 and 2009 applications were also inconsistent
2 regarding the alleged harm in Pakistan: the 1995 application
3 reflects two arrests in 1992 and 1994, but the 2009 application
4 omits the arrests. This inconsistency is compounded by Boota’s
5 own conflicting testimony, first that he was never arrested in
6 any country other than the United States, but then that he stayed
7 at a police station “once or twice” in Pakistan. Boota argues
8 that the inconsistencies regarding his arrests do not support
9 an adverse credibility finding because of his lack of education
10 and understanding of the term “arrest.” The agency was not
11 required to accept this explanation. Id. Moreover, Boota’s
12 testimony about arrests in October 1992 and June 1994 are
13 contradicted by the fact that he was in exclusion proceedings
14 in the United States from September 1992 until August 1994.
15 The adverse credibility determination is bolstered by the
16 IJ’s finding of a repeated lack of candor. 8 U.S.C.
17 § 1158(b)(1)(B)(iii) (providing that an IJ can rely on
18 “demeanor, candor, or responsiveness”). Boota admitted that
19 he intentionally hid that he had previously been denied asylum
20 and ordered excluded when applying for asylum in 1995 and, as
21 reflected above, he continued to contradict himself at the
22 hearing.
5
1 Given the multiple inconsistencies and Boota’s lack of
2 candor, it cannot be said “that no reasonable fact-finder could
3 make such a credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
4 Because all forms of relief (asylum, withholding of removal,
5 and CAT) were based on the same factual predicate, the adverse
6 credibility determination is dispositive of all three. Paul
7 v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of removal
10 that the Court previously granted in this petition is VACATED,
11 and any pending motion for a stay of removal in this petition
12 is DISMISSED as moot. Any pending request for oral argument
13 in this petition is DENIED in accordance with Federal Rule of
14 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
15 34.1(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
6