Diallo v. Holder

11-3580 Diallo v. Holder BIA Ferris, IJ A095 148 481 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 Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 15th day of May, two thousand thirteen. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 ROBERT A. KATZMANN, 9 BARRINGTON D. PARKER, 10 Circuit Judges. 11 _______________________________________ 12 13 MOUCTAR DABY DIALLO, AKA FERDINAND 14 W AUGUSTE, 15 Petitioner, 16 17 v. 11-3580 18 NAC 19 ERIC H. HOLDER, JR., UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 ______________________________________ 23 24 FOR PETITIONER: Nita Dobroshi, The Law Offices of 25 Spar & Bernstein, P.C., New York, 26 New York. 27 28 FOR RESPONDENT: Stuart F. Delery, Acting Assistant 29 Attorney General; John S. Hogan, 1 Senior Litigation Counsel; David H. 2 Wetmore, Trial Attorney, 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 8 Board of Immigration Appeals (“BIA”) decision, it is hereby 9 ORDERED, ADJUDGED, AND DECREED that the petition for review 10 is DENIED. 11 Petitioner Mouctar Daby Diallo, a native and citizen of 12 Guinea, seeks review of an August 11, 2011, decision of the 13 BIA affirming the November 30, 2009, decision of Immigration 14 Judge (“IJ”) Noel Ferris, denying his application for 15 asylum, withholding of removal, and relief under the 16 Convention Against Torture (“CAT”). In re Mouctar Daby 17 Diallo a.k.a. Ferdinand W. Auguste, No. A095 148 481 (B.I.A. 18 Aug. 11, 2011), aff’g No. A095 148 481 (Immig. Ct. N.Y. City 19 Nov. 30, 2009). We assume the parties’ familiarity with the 20 underlying facts and procedural history in this case. 21 We have reviewed both the IJ’s and the BIA’s opinions 22 “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d 23 233, 237 (2d Cir. 2008). The applicable standards of review 24 are well-established. See 8 U.S.C. § 1252(b)(4)(B); see 25 also Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2 1 2005). For asylum applications submitted prior to the 2 passage of the REAL ID Act, such as Diallo’s application, 3 any adverse credibility determination must be based on 4 “specific, cogent reasons” that “bear a legitimate nexus” to 5 the finding, and any discrepancy must be “substantial” when 6 measured against the record as a whole. See Secaida-Rosales 7 v. INS, 331 F.3d 297, 307 (2d Cir. 2003), superseded by the 8 REAL ID Act as recognized in Xiu Xia Lin v. Mukasey, 534 9 F.3d 162, 163-64 (2d Cir. 2008). The agency’s adverse 10 credibility determination is supported by substantial 11 evidence. 12 In finding Diallo not credible, the IJ relied in part 13 on Diallo’s demeanor, reasonably finding his testimony non- 14 responsive and often incoherent. See Majidi v. Gonzales, 15 430 F.3d 77, 81 n.1 (2d Cir. 2005). The IJ’s demeanor 16 finding was further supported by specific examples of 17 contradictory testimony and inconsistent record evidence. 18 See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 19 (2d Cir. 2006) (“We can be still more confident in our 20 review of observations about an applicant’s demeanor where, 21 as here, they are supported by specific examples of 22 inconsistent testimony.”). Indeed, the IJ reasonably found 3 1 discrepancies between Diallo’s testimony regarding whether 2 he was arrested before or after an election in Guinea, and 3 inconsistencies between his original and amended asylum 4 applications and his testimony regarding where his wife 5 lived after fleeing their country. See Zhou Yun Zhang v. 6 INS, 386 F.3d 66, 74 (2d Cir. 2004), overruled in part on 7 other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 94 8 F.3d 296, 305 (2d Cir. 2007). Diallo failed to provide a 9 compelling explanation for these inconsistencies. See 10 Majidi, 430 F.3d at 80-81. 11 In finding Diallo not credible, the agency also 12 reasonably relied on his submission of a Guinean National 13 Identity Card, which, even if authentic, was determined to 14 have been altered as to the information included on the 15 card, including the name of the bearer. See Siewe v. 16 Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (relying on the 17 doctrine of falsus in uno, falsus in omnibus); see also 18 Borovikova v. U.S. Dep’t of Justice, 435 F.3d 151, 157-58 19 (2d Cir. 2006) (concluding that the submission of a 20 fraudulent document in support of an asylum application 21 alone may constitute substantial evidence to support an 22 adverse credibility finding). Having questioned Diallo’s 23 credibility, Diallo’s failure to provide certain 4 1 corroborating evidence was reasonably considered by the 2 agency to negatively reflect on his credibility. See Biao 3 Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). 4 Ultimately, the agency’s adverse credibility determination 5 was supported by substantial evidence and provided an 6 adequate basis of denying Diallo’s application for asylum, 7 withholding of removal, and CAT relief because those claims 8 were based on the same factual predicate. See Paul v. 9 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). 10 For the foregoing reasons, the petition for review is 11 DENIED. As we have completed our review, any stay of 12 removal that the Court previously granted in this petition 13 is VACATED, and any pending motion for a stay of removal in 14 this petition is DISMISSED as moot. Any pending request for 15 oral argument in this petition is DENIED in accordance with 16 Federal Rule of Appellate Procedure 34(a)(2), and Second 17 Circuit Local Rule 34.1(b). 18 FOR THE COURT: 19 Catherine O’Hagan Wolfe, Clerk 5