11-3044-ag
Diallo v. Holder
BIA
Elstein, IJ
A094 778 648
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 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
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 24th day of May, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 BARRINGTON D. PARKER,
10 RICHARD C. WESLEY,
11 Circuit Judges.
12 _____________________________________
13
14 MAMADOU LAMINE DIALLO,
15 Petitioner,
16
17 v. 11-3044-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24
25 FOR PETITIONER: Gary J. Yerman, New York, New York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney General;
28 Douglas E. Ginsburg, Assistant Director;
29 Aaron R. Petty, Trial Attorney, Office of
30 Immigration Litigation, Civil Division,
31 United States Department of Justice,
32 Washington, D.C.
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
4 is DENIED.
5 Petitioner Mamadou Lamine Diallo, a native and citizen
6 of the People’s Republic of Guinea, seeks review of a July
7 6, 2011, order of the BIA affirming the May 18, 2009,
8 decision of Immigration Judge (“IJ”) Annette S. Elstein
9 denying his application for asylum, withholding of removal,
10 and relief under the Convention Against Torture (“CAT”). In
11 re Mamadou Lamine Diallo, No. A094 778 648 (B.I.A. July 6,
12 2011), aff’g No. A094 778 648 (Immig. Ct. N.Y. City May 18,
13 2009). We assume the parties’ familiarity with the
14 underlying facts and procedural history.
15 We have reviewed the IJ’s decision as supplemented by
16 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
17 Cir. 2005). The applicable standards of review are
18 well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
19 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). For asylum
20 applications governed by the REAL ID Act, such as Diallo’s,
21 the agency may, considering the totality of the
22 circumstances, base a credibility finding on an applicant’s
23 demeanor, the plausibility of his account, or
2
1 inconsistencies in his statements, without regard to whether
2 they go “to the heart of the applicant’s claim.” 8 U.S.C.
3 § 1158(b)(1)(B)(iii).
4 The agency finding that Diallo was not credible rested
5 in part on the fact that a letter he submitted from his
6 friend Mr. Bobo did not include details of his role in
7 helping Diallo to escape from prison. Generally, the agency
8 may rely on omissions as the basis for an adverse
9 credibility determination. See Xiu Xia Lin v. Mukasey, 534
10 F.3d 162, 166 n.3 (2d Cir. 2008). Diallo challenges the
11 agency’s assumption that the letter should have mentioned
12 Mr. Bobo’s past assistance; as Diallo observes, the letter
13 was personal correspondence, written to inform Diallo of
14 recent events in Guinea. But regardless of whether it was
15 reasonable to expect that the letter would describe past
16 events, remand would not be necessary because “we can state
17 with confidence that the IJ would adhere to his decision
18 were the petition remanded,” because there are “ample,
19 error-free grounds that provide substantial evidence to
20 support the IJ’s adverse credibility determination.” Singh
21 v. BIA, 438 F.3d 145, 149-50 (2d Cir. 2006) (quotations
22 omitted).
23
3
1 The record, which contains specific instances of
2 inconsistent testimony, supports the IJ’s finding that
3 Diallo’s vague and unresponsive demeanor undermined his
4 credibility. See Li Hua Lin v. U.S. Dep’t of Justice, 453
5 F.3d 99, 109 (2d Cir. 2006); Majidi v. Gonzales, 430 F.3d
6 77, 81 n.1 (2d Cir. 2005). Diallo gave conflicting
7 testimony about whether he was arrested in January or July
8 2005, whether he was stripped naked in prison, and exactly
9 how he was injured.
10 Contrary to Diallo, the IJ was not compelled to accept
11 Diallo’s explanation that he never said “January” as the
12 date of his arrest and that any mistake was a result of the
13 confused immigration proceedings. See Majidi, 430 F.3d at
14 80 (“A petitioner must do more than offer a plausible
15 explanation for his inconsistent statements to secure
16 relief; he must demonstrate that a reasonable fact-finder
17 would be compelled to credit his testimony.” (emphasis in
18 original; quotations omitted)). Similarly, we defer to the
19 IJ’s conclusion that Diallo’s testimony was inconsistent
20 concerning how he was injured and how he was stripped of his
21 clothes. See Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.
22 2007).
4
1 Together, Diallo’s demeanor and the inconsistencies in
2 his testimony constitute substantial evidence in support of
3 the agency’s adverse credibility determination. See 8
4 U.S.C. § 1158(b)(1)(B)(iii). Accordingly, the agency did
5 not err in denying Diallo’s applications for asylum,
6 withholding of removal, or CAT relief based on that
7 credibility finding. See Paul v. Gonzales, 444 F.3d 148,
8 157 (2d Cir. 2006). Because the agency’s credibility
9 finding supports the denial of relief, we need not address
10 the agency’s alternative finding that Diallo failed to meet
11 his burden of proof.
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, the pending motion
14 for a stay of removal in this petition is DISMISSED as moot.
15 Any pending request for oral argument in this petition is
16 DENIED in accordance with Federal Rule of Appellate
17 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
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