Fall v. Holder ( 2009 )

08-5417-ag
Fall v. Holder
BIA
Sichel, IJ
A098 420 409
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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 18 th day of December, two thousand nine.
PRESENT:
JON O. NEWMAN,
RALPH K. WINTER,
REENA RAGGI,
Circuit Judges.
_______________________________________
AHMED BECHIR FALL,
Petitioner,
v. 08-5417-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL, *
Respondent.
_______________________________________
FOR PETITIONER: Ronald S. Salomon, New York, N.Y.
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General
Eric H. Holder, Jr., is automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
FOR RESPONDENT: Tony West, Assistant Attorney General,
Civil Division; Thomas B. Fatouros,
Senior Litigation Counsel; Anh-Thu P.
Mai-Windle, Senior Litigation Counsel,
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.
Ahmed Bechir Fall, a native and citizen of Mauritania,
seeks review of an October 9, 2008 order of the BIA, affirming
the June 14, 2007 decision of Immigration Judge (“IJ”) Helen
Sichel, which denied his application for asylum, withholding
of removal, and relief under the Convention Against Torture
(“CAT”). In re Ahmed Bechir Fall, No. A098 420 409 (B.I.A.
Oct. 9, 2008), aff’g No. A098 420 409 (Immig. Ct. N.Y. City
June 14, 2007). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
I. Asylum, Withholding of Removal, and CAT Relief
When the BIA affirms the IJ’s decision in some respects
but not others, this Court reviews the IJ’s decision as
modified by the BIA decision, i.e., minus the arguments for
denying relief that were rejected by the BIA. See Xue Hong
Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.
2005). In addition to her adverse credibility determination,
the IJ pretermitted Fall’s asylum application as untimely and
indicated that she would deny that application as a matter of
discretion based on Fall’s conduct in this country. The BIA
declined to reach these latter findings, affirming the IJ’s
decision to the extent she found Fall not credible.
Accordingly, we review only Fall’s challenge to that
credibility determination.
We review the agency’s factual findings, including
adverse credibility findings, under the substantial evidence
standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v.
Mukasey, 519 F.3d 90, 95 (2d Cir. 2008). We review de novo
questions of law and the application of law to undisputed
fact. See, e.g., Salimatou Bah v. Mukasey, 529 F.3d 99, 110
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(2d Cir. 2008).
Substantial evidence supports the agency’s adverse
credibility determination. The agency properly relied on
multiple inconsistencies regarding the length of time Fall
claimed to have been detained in December 2000. See Diallo v.
INS, 232 F.3d 279, 288 (2d Cir. 2000). In his asylum
application, Fall stated that he had been detained for one
week in December 2000, during which time he was beaten, fed
only a small amount of food, and “mistreated with
electricity.” However, during his merits hearing, Fall
testified several 1 times that he had been detained for two
weeks. Although “minor” and “isolated” inconsistencies
regarding the amount of time an applicant spends in detention
need not be fatal to his credibility, id. at 287, the IJ
reasonably deemed consequential Fall’s inconsistent statements
about this central aspect of his claim. See Tu Lin v.
Gonzales, 446 F.3d 395, 402 (2d Cir. 2006). Moreover, no
reasonable fact-finder would have been compelled to accept
Fall’s explanation that this inconsistency was a simple
mistake. See Majidi v. Gonzales, 430 F.3d 77, 81 (2d Cir.
2005). As the BIA noted, during his hearing, Fall doubled the
length of his alleged detention.
The agency also reasonably relied on the discrepancy
between Fall’s claim that he was an active participant in the
Action for Change political party for several years and his
inability to accurately recall the names of party leaders.
Such inability undermined his claim, which was based entirely
on his political opinion. Secaida-Rosales v. INS, 331 F.3d
297, 307 (2d Cir. 2003). Moreover, no reasonable fact-finder
would be compelled to credit Fall’s explanation that his lack
of knowledge stemmed from his “low level” involvement in the
organization and his lack of education. See Majidi, 430 F.3d
at 80-81.
Ultimately, substantial evidence supports the agency’s
adverse credibility determination. See Shu Wen Sun v. BIA,
510 F.3d 377, 379 (2d Cir. 2007). Thus, the agency’s denial
of Fall’s application for asylum, withholding of removal, and
CAT relief was proper. See Paul v. Gonzales, 444 F.3d 148,
1
The BIA’s opinion states that Fall testified to two weeks of detention
“twice.” JA 3. The IJ’s oral decision states that Fall testified to two weeks
of detention “at least twice.” JA 55. In fact, the record reveals that Fall so
testified on four occasions. JA 92, 93, 94, 125.
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156 (2d Cir. 2006) (recognizing that withholding of removal
necessarily fails if the applicant is unable to show the
objective likelihood of persecution needed to make out an
asylum claim); Xue Hong Yang v. U.S. Dep't of Justice, 426
F.3d at 523.
II. Motion to Remand
We review the BIA’s denial of a motion to remand for
abuse of discretion. Li Yong Cao v. U.S. Dep’t of Justice,
421 F.3d 149, 157 (2d Cir. 2005). A motion to remand that
relies on newly available evidence is held to the substantive
requirements of a motion to reopen. Id. at 156. The movant’s
failure to submit previously unavailable material evidence or
to establish a prima facie case for the underlying substantive
relief sought are proper grounds on which the BIA may deny
such a motion. See INS v. Abudu, 485 U.S. 94, 104-05 (1988).
In this case, the BIA reasonably found that Fall failed
to demonstrate that changed country conditions in Mauritania
would affect his claim for relief. Indeed, Fall offered no
explanation as to how the events detailed in the material he
submitted would establish his eligibility for relief,
particularly given the agency’s adverse credibility
determination. See 8 C.F.R. § 1208.13(b)(2)(iii); see also
Abudu, 485 U.S. at 104-05. Accordingly, the BIA did not abuse
its discretion in denying Fall’s motion to remand.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument in
this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
By:___________________________
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