Oulare v. Lynch ( 2015 )

14-1376
Oulare v. Lynch
BIA
Laforest, IJ
A087 554 130
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 11th day of August, two thousand fifteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 RICHARD C. WESLEY,
10 DENNY CHIN,
11 Circuit Judges.
12 _____________________________________
13
14 IYA DOUTY OULARE,
15 Petitioner,
16
17 v. 14-1376
18 NAC
19
20 LORETTA E. LYNCH, UNITED STATES
21 ATTORNEY GENERAL,1
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: Andy Wong, New York, NY.
26
1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Loretta E. Lynch is automatically
substituted for former Attorney General Eric H. Holder, Jr.
1 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
2 Attorney General, Kiley Kane, Senior
3 Litigation Counsel, Lynda A. Do,
4 Attorney, Office of Immigration
5 Litigation, United States
6 Department of Justice, Washington,
7 D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review is
12 DENIED.
13 Petitioner Iya Douty Oulare, a native and citizen of
14 Guinea, seeks review of an April 11, 2014 decision of the BIA
15 affirming an April 3, 2012 decision of an Immigration Judge
16 (“IJ”) denying Oulare’s application for asylum, withholding of
17 removal, and relief under the Convention Against Torture
18 (“CAT”). In re Iya Douty Oulare, No. A087 554 130 (B.I.A. Apr.
19 11, 2014), aff’g No. A087 554 130 (Immig. Ct. N.Y. City Apr.
20 2, 2012). We assume the parties’ familiarity with the
21 underlying facts, procedural history and issues presented for
22 review.
23 Under the circumstances of this case, we have reviewed “the
24 judgment of the IJ as modified by the BIA’s decision–that is,
25 minus the . . . argument[s] for denying relief that [were]
2
1 rejected by the BIA.” Yang v. U.S. Dep’t of Justice, 426 F.3d
2 520, 522 (2d Cir. 2005). The applicable standards of review
3 are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin
4 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
5 For asylum applications like Oulare’s, governed by the Real
6 ID Act, the agency may, “[c]onsidering the totality of the
7 circumstances,” base a credibility finding on an asylum
8 applicant’s “demeanor, candor, or responsiveness,” the
9 plausibility of his account, and inconsistencies in his
10 statements, “without regard to whether” they go “to the heart
11 of the applicant’s claim,” so long as they reasonably support
12 an inference that the applicant is not credible. 8
13 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey, 534
14 F.3d 162, 167 (2d Cir. 2008). This Court “defer[s] . . . to
15 an IJ’s credibility determination unless, from the totality of
16 the circumstances, it is plain that no reasonable fact-finder
17 could make such an adverse credibility ruling.” Xiu Xia Lin,
18 534 F.3d at 167. Here, the agency reasonably based its adverse
19 credibility finding on inconsistencies between Oulare’s
20 written asylum applications and his testimony before the IJ.
3
1 In his first asylum application, Oulare wrote that he first
2 traveled to the United States in 1999, returned in 2003, and
3 made his third (and final) trip on December 4, 2008. In his
4 second application, he wrote that he made only one trip to the
5 United States, leaving Guinea on December 31, 2008 and arriving
6 here in January 2009. Oulare testified to a different set of
7 dates: he first entered the United States in 1997, remained here
8 for nine years, and returned to Guinea; entered the United
9 States in 2007 and lived here for nearly a year; and finally
10 entered a third time in January 2009. The IJ gave Oulare an
11 opportunity to explain these discrepancies. Oulare responded
12 that, contrary to the written statement accompanying his first
13 asylum application, he did not come to the United States in 2003
14 and was in Guinea in December 2008. He blamed the erroneous
15 December date on the person who wrote the application. He also
16 explained that he lost his passport when he was arrested in the
17 United States in 1997 and consequently could not recall the
18 dates of his travel. The agency was not compelled to credit
19 these explanations. See Majidi v. Gonzales, 430 F.3d 77, 80-81
20 (2d Cir. 2005). Oulare signed his two asylum applications,
21 both of which conflicted with his hearing testimony. And the
4
1 loss of a passport in 1997 cannot explain why he gave discrepant
2 dates in 2009.
3 Further, Oulare testified that he first left for the United
4 States in 1997. However, he submitted a letter from a member
5 of his political party dated January 1995 warning that Oulare’s
6 life was “in great danger should he return to Guinea.” Oulare
7 argues that the letter does not preclude the possibility that
8 in 1995, he had fled Guinea to a country other than the United
9 States. But Oulare did not submit this explanation at his
10 hearing, and “the arguments of counsel are not evidence.”
11 Pretzantzin v. Holder, 725 F.3d 161, 170 (2d Cir. 2013).
12 Rather, Oulare testified that he was in Guinea in January 1995,
13 that the letter was supposed to be dated 1997, that the author
14 meant to write that Oulare “was arrested in 1995,” and that he
15 (Oulare) would not have submitted the letter if he knew it
16 contained that mistake. Given that Oulare submitted the letter
17 as evidence and Oulare swore that everything in his application
18 was accurate, the agency was entitled to reject this
19 explanation. See Majidi, 430 F.3d at 80-81.
20 The adverse credibility determination also finds support
21 in Oulare’s inability to explain why his application stated that
5
1 after his arrest in 2007, he was “jailed at the military camp,”
2 but he testified that he was detained in a gendarmerie, and that
3 the military “did not take me to the camp.” When confronted
4 with this contradiction, Oulare explained that it was “a very
5 big camp” that encompassed both the gendarmerie and the military
6 camp. The IJ was not compelled to accept this explanation,
7 which ran counter to Oulare’s testimony distinguishing the two
8 locations. See Majidi, 430 F.3d at 80-81.
9 The “totality of the circumstances” described above
10 support the adverse credibility finding. 8 U.S.C.
11 § 1158(b)(1)(B)(iii). We need not reach the agency’s
12 alternative basis for denying relief. See INS v. Bagamasbad,
13 429 U.S. 24, 25 (1976) (“As a general rule courts and agencies
14 are not required to make findings on issues the decision of which
15 is unnecessary to the results they reach.”). And because
16 Oulare’s claims share the same factual predicate, the adverse
17 credibility determination is also dispositive of his claims for
18 withholding of removal and CAT relief. See Paul v. Gonzales,
19 444 F.3d 148, 156-57 (2d Cir. 2006).
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, any stay of removal
6
1 that the Court previously granted in this petition is VACATED,
2 and any pending motion for a stay of removal in this petition
3 is DISMISSED as moot. Any pending request for oral argument
4 in this petition is DENIED in accordance with Federal Rule of
5 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
6 34.1(b).
7 FOR THE COURT:
8 Catherine O=Hagan Wolfe, Clerk
7