11-3736-ag BIA
Ely Tem v. Holder LaForest, IJ
A087 445 673
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 20th day of June, two thousand twelve.
PRESENT:
DENNIS JACOBS,
Chief Judge,
PIERRE N. LEVAL,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
MOHAMED ALY BABA ELY TEM,
Petitioner,
v. 11-3736-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: H. Raymond Fasano, New York, NY.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Francis W. Fraser,
Senior Litigation Counsel; Linda Y.
Cheng, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Mohamed Aly Baba Ely Tem, a native and citizen of
Mauritania, seeks review of a September 2, 2011, decision of
the BIA affirming the July 7, 2010, decision of Immigration
Judge (“IJ”) Brigitte Laforest, which denied his application
for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Mohamed Aly Baba
Ely Tem, No. A087 445 673 (B.I.A. Sept. 2, 2011), aff’g No.
A087 445 673 (Immig. Ct. N.Y. City July 7, 2010). We assume
the parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision, “including the portions not explicitly
discussed by the BIA.” See Yun-Zui Guan v. Gonzales, 432
F.3d 391, 394 (2d Cir. 2005). We review the agency’s
adverse credibility determination under the substantial
evidence standard, treating it as “conclusive unless any
reasonable adjudicator would be compelled to conclude to the
contrary.” See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin
Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
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For asylum applications such as Ely Tem’s, governed by
the amendments made to the Immigration and Nationality Act
by the REAL ID Act of 2005, the agency may, considering the
totality of the circumstances, base a credibility finding on
inconsistencies or omissions in the applicant’s statements,
without regard to whether the inconsistencies or omissions
go “to the heart of the applicant’s claim.” See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
167 (2d Cir. 2008).
Ely Tem challenges the agency’s adverse credibility
determination as a whole. However, in appealing the IJ’s
decision to the BIA, Ely Tem addressed only one of the IJ’s
bases for finding him not credible – the inconsistency
regarding the date of his arrest. He did not specifically
dispute the other inconsistencies identified by the IJ,
including inconsistencies between his testimony and the
personal statement included with his asylum application
concerning other details of his arrest (whether police beat
him upon his arrival at the police station, whether he was
conscious at the time, and what occurred at the police
station after his arrest); inconsistencies between his
testimony and his asylum application concerning his place of
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residence from August to October 2008 and his activities
during that period; inconsistencies between his testimony
and evidence submitted in support of his asylum application
regarding which of his family members had been questioned by
Mauritanian authorities about his present whereabouts; and
inconsistencies between his testimony and the affidavit he
submitted describing how he obtained his Mauritanian
passport.
In his appeal to the BIA, instead of specifically
contesting these adverse credibility findings, Ely Tem
conclusorily asserted that the IJ “denied the case based on
misunderstanding or incorrect assumptions” and that “[a]
review of the record demonstrates that the appellant was
responsive and detailed with respect to the questions asked
of him.” In his petition to this Court, Ely Tem makes
similarly conclusory arguments.
Even assuming that Ely Tem’s challenge to the agency’s
adverse credibility determination is properly preserved for
our review, see Karaj v. Gonzales, 462 F.3d 113, 119 & n.2
(2d Cir. 2006), his challenge fails on the merits.
Substantial evidence supports the agency’s adverse
credibility determination, based on the above-mentioned
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inconsistencies between and among Ely Tem’s testimony and
his asylum application, the personal statement included with
his application, and the evidence submitted in support of
his application.
Ely Tem’s challenges to the BIA’s opinion are
unavailing. Ely Tem argues that “the Board did not apply
any test, standard or scrutiny with respect to [his] appeal
of the IJ’s denial of his asylum claim.” The BIA’s
decision, however, explicitly stated and correctly applied
the appropriate standard of review. See 8 C.F.R. §
1003.1(d)(3)(i) (providing that factual findings, including
credibility determinations, are reviewed by the BIA for
clear error).
Next, Ely Tem claims that the agency “mischaracterized
the record,” because the IJ and the BIA described his
testimony as “inconsistent,” whereas he claims that “he
answered every question in a detailed and responsive
manner.” However, the BIA’s decision addressed the many
inconsistencies noted by the IJ, including several
inconsistencies not addressed by Ely Tem on appeal, and
reasonably concluded that the IJ’s adverse credibility
determination was not clearly erroneous. See Xiu Xia Lin,
534 F.3d at 167 (finding that the agency “may rely on any
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inconsistency or omission in making an adverse credibility
determination” as long as the totality of the circumstances
establishes the applicant is incredible (internal quotation
marks omitted)). Accordingly, Ely Tem’s suggestion that the
BIA failed to “carefully” or “thorough[ly]” consider the
record is without merit.
Finally, Ely Tem characterizes the inconsistencies
noted by the agency as “a minor misunderstanding, all of
which were cleared up with consistent and reasonable
explanations.” But his proffered explanations are non-
compelling, concern only some of the inconsistencies
identified by the agency, and fail to establish that “no
reasonable fact-finder could make such an adverse
credibility ruling.” See id.; see also 8 U.S.C.
§ 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430 F.3d 77, 80-81
(2d Cir. 2005).
Because the totality of the circumstances supports the
agency’s adverse credibility determination, we defer to that
finding. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,
534 F.3d at 167. As the only evidence of a threat to Ely
Tem’s life or freedom depended upon his credibility, the
adverse credibility determination in this case necessarily
precludes success on his claims for asylum, withholding of
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removal, and CAT relief. See Paul v. Gonzales, 444 F.3d
148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of
Justice, 426 F.3d 520, 523 (2d Cir. 2005).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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