Guediara v. Sessions

16-2625 Guediara v. Sessions BIA Sichel, IJ A089 193 531 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 8th day of November, two thousand seventeen. 5 6 PRESENT: 7 JON O. NEWMAN, 8 RICHARD C. WESLEY, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges. 11 _____________________________________ 12 13 MOUSSA GUEDIARA, AKA YAYA CAMARA, 14 Petitioner, 15 16 v. 16-2625 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Gary J. Yerman, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Jessica A. 27 Dawgert, Senior Litigation Counsel; 28 Yanal H. Yousef, Trial Attorney, 29 Office of Immigration Litigation, 30 United States Department of Justice, 31 Washington, DC. 1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED that the petition for review is 4 DENIED. 5 Petitioner Moussa Guediara, a native and citizen of Côte 6 d’Ivoire, seeks review of a June 30, 2016, decision of the BIA 7 affirming a May 12, 2015, decision of an Immigration Judge 8 (“IJ”) denying Guediara’s application for asylum, withholding 9 of removal, and relief under the Convention Against Torture 10 (“CAT”). In re Moussa Guediara, No. A089 193 531 (B.I.A. June 11 30, 2016), aff’g No. A089 193 531 (Immig. Ct. N.Y. City May 12, 12 2015). We assume the parties’ familiarity with the underlying 13 facts and procedural history in this case. 14 When the BIA summarily affirms the IJ’s decision, we review 15 the IJ’s decision, as modified by the BIA, i.e., minus the 16 findings regarding timeliness and changed circumstances that 17 the BIA did not reach. See Xue Hong Yang v. U.S. Dep’t of 18 Justice, 426 F.3d 520, 522 (2d Cir. 2005). Petitioner raises 19 two issues on appeal: (1) whether the agency erred in relying 20 on fingerprint evidence from the Department of Homeland 21 Security (“DHS”); and (2) whether substantial evidence supports 22 the agency’s determination that Guediara was not credible. 2 1 I. Admission of Fingerprint Evidence 2 “The due process test for admissibility of evidence in a 3 deportation hearing is whether the evidence is probative and 4 whether its use is fundamentally fair.” Felzcerek v. INS, 75 5 F.3d 112, 115 (2d Cir. 1996) (internal quotation marks omitted). 6 “In the evidentiary context, fairness is closely related to the 7 reliability and trustworthiness of the evidence.” Id. While 8 “the strict rules of evidence do not apply in deportation 9 proceedings,” a document’s “admissibility under the Federal 10 Rules of Evidence lends strong support to the conclusion that 11 admission of the evidence comports with due process.” Id. at 12 116. “Records made by public officials in the ordinary course 13 of their duties . . . evidence strong indicia of reliability. 14 . . . because public officials are presumed to perform their 15 duties properly and generally lack a motive to falsify 16 information.” Id.; see also Barradas v. Holder, 582 F.3d 754, 17 763 (7th Cir. 2009) (“[W]hen the evidence introduced is that 18 recorded by a DHS agent in a public record, the absent agent 19 cannot be presumed to be an unfriendly witness or other than 20 an accurate recorder. Establishing an automatic right to 21 cross-examine the preparers of such documents would place an 22 unwarranted burden on the DHS.” (internal citations and 3 1 quotation marks omitted)). A petitioner can overcome this 2 presumption by providing evidence that undermines the 3 reliability of the official records in question. Felzcerek, 4 75 F.3d at 117. 5 The fingerprint evidence in this case—printouts from a DHS 6 database tracking the entry of aliens into the United States—are 7 official records prepared by DHS agents in the ordinary course 8 of their duties. Because these official records are presumed 9 to be reliable, id. at 116, and Guediara did not introduce any 10 evidence calling into question their reliability (such as 11 evidence of tampering or mistake), DHS was not required to call 12 a witness to document the chain of custody or preparation of 13 the records. 14 Furthermore, DHS called a fingerprint specialist whom 15 Guediara had an opportunity to cross examine. While Woods did 16 not have personal knowledge of the preparation or chain of 17 custody of the fingerprints, his testimony helped to establish 18 the records’ reliability by describing how he obtained the 19 fingerprints from the DHS database, confirming that the prints 20 did not match, and explaining that the database would 21 automatically consolidate matching fingerprints even if an 22 individual gave a different name. Ultimately, it was up to the 4 1 IJ to weigh the DHS evidence and Woods’s testimony against 2 Guediara’s conflicting testimony regarding his date of entry. 3 Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013) (“We defer to 4 the agency’s determination of the weight afforded to an alien’s 5 documentary evidence.”). We find no error in the agency’s 6 admission of the DHS fingerprint evidence. 7 II. Adverse Credibility Ruling 8 We review the agency’s credibility determination for 9 substantial evidence. Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165 10 (2d Cir. 2008); see also 8 U.S.C. § 1252(b)(4). The agency 11 may, “[c]onsidering the totality of the circumstances,” base 12 an adverse credibility finding on inconsistencies between an 13 asylum applicant’s testimony and other record evidence. 14 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. 15 Credibility rulings are “conclusive unless any reasonable 16 adjudicator would be compelled to conclude to the contrary.” 17 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin, 534 F.3d at 165. 18 The fingerprint evidence contradicting Guediara’s 19 testimony about his date and manner of entry constitutes 20 substantial evidence supporting the adverse credibility 21 determination. The discrepancy about Guediara’s arrival 22 called into question when he entered the United States and 5 1 whether he was in Côte d’Ivoire at the time of his alleged 2 persecution, thereby calling into question the entirety of his 3 claim. See Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) 4 (“[A] single false document or a single instance of false 5 testimony may (if attributable to petitioner) infect the 6 balance of the alien’s uncorroborated or unauthenticated 7 evidence.”). Guediara’s speculation that there may have been 8 another individual named Yaya Camara who entered the United 9 States on the same day does not resolve the issue because it 10 does not account for the lack of any entry record with 11 fingerprints matching Guediara’s. See Majidi v. Gonzales, 430 12 F.3d 77, 80-81 (2d Cir. 2005) (“A petitioner must do more than 13 offer a plausible explanation for his inconsistent statements 14 to secure relief; he must demonstrate that a reasonable 15 fact-finder would be compelled to credit his testimony.” 16 (internal quotation marks omitted)). 17 Furthermore, Guediara did not rehabilitate this testimony. 18 See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An 19 applicant’s failure to corroborate his or her testimony may bear 20 on credibility, because the absence of corroboration in general 21 makes an applicant unable to rehabilitate testimony that has 22 already been called into question.”). While his certificate 6 1 of citizenship and attestation of identity corroborated his 2 Ivorian identity, the documents did not show he was in Cote 3 d’Ivoire in 2006, when the alleged persecution occurred, or show 4 when he entered the United States. As the IJ found, Guediara’s 5 timeline was further undermined by other documentary evidence: 6 the signature on a 2006 certificate allegedly reflecting the 7 sale of his business did not match Guediara’s signature on his 8 asylum application; and Guediara submitted a political 9 membership card for 2004-2005 but not for 2006-2007. 10 Given the discrepancy between Guediara’s testimony and the 11 fingerprint evidence regarding his entry date as well as the 12 lack of corroborating evidence, the totality of the 13 circumstances supports the adverse credibility ruling. 14 8 U.S.C. § 1158(b)(1)(B)(iii); Siewe, 480 F.3d at 170; Biao 15 Yang, 496 F.3d at 273. Because Guediara’s claims were all based 16 on the same factual predicate, the adverse credibility 17 determination is dispositive of asylum, withholding of removal, 18 and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d 19 Cir. 2006). 20 For the foregoing reasons, the petition for review is 21 DENIED. As we have completed our review, any stay of removal 22 that the Court previously granted in this petition is VACATED, 7 1 and any pending motion for a stay of removal in this petition 2 is DISMISSED as moot. Any pending request for oral argument 3 in this petition is DENIED in accordance with Federal Rule of 4 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 5 34.1(b). 6 FOR THE COURT: 7 Catherine O’Hagan Wolfe, Clerk 8