Barry v. Holder ( 2011 )

09-3055-ag
Barry v. Holder
BIA
Nelson, IJ
A093 397 279
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 21st day of November, two thousand eleven.
5
6 PRESENT:
7 DENNIS Jacobs,
8 Chief Judge
9 PETER W. Hall,
10 GERARD E. LYNCH,
11 Circuit Judges.
12 _______________________________________
13
14 SADOU BARRY,
15 Petitioner,
16
17 v. 09-3055-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL
21 Respondent.
22 ______________________________________
23
24
25 FOR PETITIONER: Theodore Vialet, New York, New York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney General;
28 Janice K. Redfern, Senior Litigation
29 Counsel; Gerald M. Alexander, Attorney,
30 Office of Immigration Litigation, Civil
31 Division, United States Department of
32 Justice, Washington, D.C.
33
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Sadou Barry, a native and citizen of Guinea,
6 seeks review of a June 17, 2009, order of the BIA affirming
7 the November 29, 2007, decision of Immigration Judge (“IJ”)
8 Barbara A. Nelson denying Barry’s application for asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Sadou Barry, No. A093 397
11 279 (B.I.A. June 17, 2009), aff’g No. A093 397 279 (Immig.
12 Ct. N.Y. City Nov. 29, 2007). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as supplemented by the BIA’s decision.
17 See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
18 The applicable standards of review are well-established.
19 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562
20 F.3d 510, 513 (2d Cir. 2009).
21 The IJ primarily found that Barry was not credible
22 because the medical certificate he supplied was inconsistent
23 with his testimony. The record supports this conclusion:
2
1 while Barry testified that he had difficulty breathing, a
2 back injury, and was confused, the certificate indicated
3 that his breathing was normal, did not discuss a back
4 injury, and described him as lucid. The IJ identified an
5 inconsistency between the certificate, which states that
6 Barry had a “bruise sub-connective at the left eye and
7 multiple lesions” and Barry’s testimony that he was beaten
8 on the face but did not have an eye injury. It is unclear
9 whether the bruise and lesions constituted an eye injury.
10 Nevertheless, the IJ’s adverse credibility finding, premised
11 on inconsistencies between the medical certificate and
12 Barry’s testimony, is supported by the substantial evidence.
13 The agency further found that, even if his testimony
14 was credible, he failed to sustain his burden of proof,
15 having provided no corroborating testimony from his cousin
16 or uncle, who are in the United States, or the Brooklyn-
17 based Federal Secretary of the UPR. See Chuilu Liu v.
18 Holder, 575 F.3d 193, 197-98 (2d Cir. 2009) (an IJ may
19 properly deny an applicant’s claim for failure to provide
20 reasonably available corroborating evidence); see also id.21 at 198 n.5 (“An [alien’s] failure to corroborate his
22 testimony may bear on credibility, because the absence of
23 corroboration in general makes an applicant unable to
3
1 rehabilitate testimony that has already been called into
2 question.” (quotation omitted)). Barry does not challenge
3 this independent reason for denying his applications for
4 relief.
5 Accordingly, the agency’s finding that his testimony
6 was not credible and he did not meet his burden of proof
7 because he provided insufficient corroboration supports the
8 denial of relief. See Paul v. Gonzales, 444 F.3d 148, 157
9 (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
20
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