Diarra v. Lynch , 646 F. App'x 62 ( 2016 )

15-216
Diarra v. Lynch
BIA
Sichel, IJ
A095 515 035
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.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
19th day of April, two thousand sixteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
PETER W. HALL,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
LASSINA DIARRA,
Petitioner,
v. 15-216
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Gary J. Yerman, New York, New York.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Anthony
W. Norwood, Senior Litigation
Counsel; Colin J. Tucker, Trial
Attorney, Office of Immigration
Litigation, United States
Department of Justice, Washington,
D.C.
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.
Petitioner Lassina Diarra, a native and citizen of the
Ivory Coast, seeks review of a December 31, 2014, decision of
the BIA affirming a July 11, 2013, decision of an Immigration
Judge (“IJ”) denying Diarra’s application for asylum,
withholding of removal, and relief under the Convention Against
Torture (“CAT”). In re Lassina Diarra, No. A095 515 035 (B.I.A.
Dec. 31, 2014), aff’g No. A095 515 035 (Immig. Ct. N.Y. City
July 11, 2013). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
Under the circumstances of this case, we have considered
both the IJ’s and the BIA’s opinions “for the sake of
completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
524, 528 (2d Cir. 2006). The applicable standards of review
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are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin
Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
Diarra challenges the agency’s finding that his asylum
application was frivolous, which rendered him permanently
ineligible for any immigration benefits, save withholding of
removal and CAT relief. 8 U.S.C. § 1158(d)(6); 8 C.F.R.
§ 1208.20. To find an asylum application frivolous, an IJ must
(1) give the alien notice of the consequences of filing a
frivolous application; (2) make a specific finding that the
alien knowingly filed a frivolous application; (3) identify
sufficient evidence in the record to support the finding that
a material element of the asylum application was deliberately
fabricated; and (4) allow the alien sufficient opportunity to
account for any discrepancies or implausible aspects of the
claim. 8 C.F.R. § 1208.20; Matter of Y-L, 24 I. & N. Dec. 151,
154 (BIA 2007).
Diarra testified that he arrived in the United States on
May 1, 2007, using a friend’s passport. That date was material:
it made the application timely. Absent timely filing, Diarra
was ineligible for asylum. The agency found that Diarra
deliberately fabricated his date of arrival, citing a
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“US-Visit” document, which showed that the friend, not Diarra,
arrived that day. Diarra does not dispute that the IJ warned
him about the consequences of filing a frivolous application
and made a specific finding. The only issues are whether the
US-Visit document was sufficient to ground the finding and
whether Diarra had an adequate opportunity to explain the
conflict between that document and his application.
Diarra argues that consideration of the US-Visit document
was “fundamentally unfair,” in violation of due process, and
therefore cannot ground a frivolous application finding. He
challenges the document’s trustworthiness. According to the
Government, the US-Visit document is driven by fingerprints,
which are unique, but the document here contained photographs
of two men (neither one was Diarra). He cites the fact that
the document was not authenticated as required by the two
relevant hearsay exceptions, for business records and public
records, Fed. R. Evid. 803(6), 803(8), and by agency regulation,
8 C.F.R. § 1287.6. Diarra also contends that by “springing”
the document on him at the last minute, he had no opportunity
to prepare a defense.
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“The government is not required to comply with either the
requirements of the Federal Rules of Evidence or the heightened
procedural protections of a criminal trial when seeking to have
documentary evidence . . . admitted in a removal proceeding.”
Zhen Nan Lin v. U.S. Dep’t of Justice, 459 F.3d 255, 268 (2d
Cir. 2006). The due process test for admissibility of evidence
in a deportation hearing “is whether the evidence is probative
and whether its use is fundamentally fair.” Felzcerek v. INS,
75 F.3d 112, 115 (2d Cir. 1996) (internal citation and
punctuation omitted). “In the evidentiary context, fairness
is closely related to the reliability and trustworthiness of
the evidence.” Id.
Diarra challenges the US-Visit document as unreliable,
arguing that it purported to rely on fingerprints, which are
unique, but inexplicably contained photographs of two different
men. As the Government notes, Diarra did not exhaust this
argument before the BIA, and so we decline to consider it. Lin
Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007)
(explaining that this Court’s review is limited to “those issues
that formed the basis for” the BIA decision).
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That leaves questions of procedure: whether the Government
was required to call a witness to authenticate the US-Visit
document, and whether Diarra had adequate notice of the
document. There was no due process violation on either score.
Diarra cites Federal Rules of Evidence 803(6) (business
record exception) and 803(8) (public records exception), which
require authentication. But the rules of evidence do not apply
in removal proceedings. Felzcerek, 75 F.3d at 116.
He also cites an agency regulation, 8 C.F.R. § 1287.6,
which provides that “an official record or entry therein, when
admissible for any purpose, shall be evidenced by an official
publication thereof, or by a copy attested by the official
having legal custody of the record or by an authorized deputy.”
8 C.F.R. § 1287.6(a). Here, no witness testified to the
authenticity of the US-Visit document. However, the
Government attorney explained, on the record, that she searched
a Department of Homeland Security (“DHS”) database for the visa
and passport number on which Diarra claimed to have entered,
and that the US-Visit document was the result. The Government
attorney thus had “legal custody” of the document by virtue of
her access to the DHS database, and the IJ had the discretion
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to find that her description of how she retrieved the document
authenticated it. 8 C.F.R. § 1240.1(c)(“The immigration judge
shall receive and consider material and relevant evidence, rule
upon objections, and otherwise regulate the course of the
hearing.”).
The second question is whether Diarra was deprived the
opportunity to prepare a defense. He was not. After Diarra
testified to entering the United States on May 1, 2007, the IJ
asked the Government to ascertain whether DHS documents
reflected that entry. The IJ took an extended lunch break for
Diarra to review his written asylum application with his
attorney and for the Government attorney to retrieve the
relevant information from the DHS database. After the break,
Diarra declined to correct or amend his written application,
and the IJ warned him about the consequences of filing a
frivolous asylum application. The Government then confronted
Diarra with the US-Visit document and gave him the chance to
explain the dramatic discrepancy between it and his testimony.
Cf. Ming Shi Xue v. BIA, 439 F.3d 111, 123 (2d Cir. 2006) (deeming
it “appropriate to require administrative decisionmakers to
afford applicants an opportunity to address such latent or
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otherwise not obvious or ‘dramatic’ discrepancies before
depending on them as a basis for a determination of no
credibility”). At the end of the hearing, the IJ invited
Diarra’s counsel to submit a written closing statement,
advising that she was “leaning” toward imposing a frivolous
filing bar. The attorney declined. Diarra thus “had
sufficient opportunity to account for any discrepancies or
implausible aspects” of his claim. 8 C.F.R. § 1208.20.
Adverse Credibility Determination
The next question is whether substantial evidence supports
the agency’s adverse credibility determination against Diarra.
Under the REAL ID Act of 2005, the agency may, in light of “the
totality of the circumstances,” base an adverse credibility
determination on an asylum applicant’s “demeanor, candor, or
responsiveness,” the plausibility of his account, and
inconsistencies in his statements, “without regard to whether”
those inconsistencies go “to the heart of the applicant’s
claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey,
534 F.3d 162, 165 (2d Cir. 2008). Under the “substantial
evidence” standard of review, “we defer . . . to an IJ’s
credibility determination unless, from the totality of the
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circumstances, it is plain that no reasonable fact-finder could
make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d
at 165, 167.
The adverse credibility determination here rests on
substantial evidence: the US-Visit document. That document
cast into doubt Diarra’s testimony that he arrived in the United
States in 2007 and, in turn, his claim to have fled the Ivory
Coast because his father’s store was ransacked that year.
The IJ cited two other inconsistencies in finding that
Diarra was not credible. One was that Diarra’s “asylum
application failed to indicate that he was arrested” in the
Ivory Coast. But the application did describe an arrest.
The second inconsistency cited by the IJ was that Diarra’s
application “states that he was a member of the RDR,” a political
party in the Ivory Coast, but he “testified repeatedly that he
was never a member of any political party.” On this score, the
application was muddled. In it, Diarra twice denied being a
member of a political party. But then, after describing
harassment suffered by his family, it said, “All this because
my membership with the Rally of the Republicans (RDR) since
September 2002.” When confronted with this statement, Diarra
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explained that the application’s preparer made a mistake. This
is a plausible explanation--that one sentence contradicted the
remainder of Diarra’s application and his testimony at the
hearing. But under the highly deferential standard of review,
we cannot conclude that the agency was compelled to accept it.
Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (explaining
that the agency is not required to credit an explanation that
is merely plausible or possible). Moreover, contrary to
Diarra’s argument, the IJ did “actively appraise” the
explanation: she rejected it.
The US-Visit document cast doubt on the timeliness of
Diarra’s asylum application and the root of his claim. The
totality of the circumstances therefore supports the adverse
credibility determination. Because all forms of relief
(asylum, withholding of removal, and CAT relief) were based on
the same factual predicate, the adverse credibility
determination is dispositive of all three. Paul v. Gonzales,
444 F.3d 148, 156-57 (2d Cir. 2006). We decline to reach the
agency’s alternative finding that Diarra failed to meet his
burden of proof. INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As
a general rule courts and agencies are not required to make
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findings on issues the decision of which is unnecessary to the
results they reach.”).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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