Diallo v. Holder ( 2011 )

11-905-ag
Diallo v. Holder
BIA
Nelson, IJ
A094 813 513
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 22nd day of November, two thousand eleven.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 ROBERT A. KATZMANN,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 ABDOUL GADIRI DIALLO,
14 Petitioner,
15
16 v. 11-905-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Bibiana C. Andrade, New York,
24 New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Derek C. Julius, Senior
28 Litigation Director; Theo Nickerson,
29 Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Abdoul Gadiri Diallo, a native and citizen
10 of Guinea, seeks review of a February 18, 2011, order of the
11 BIA, affirming an April 1, 2009, decision of an Immigration
12 Judge (“IJ”), which denied his application for asylum,
13 withholding of removal, and relief under the Convention
14 Against Torture (“CAT”). In re Abdoul Gadiri Diallo, No.
15 A094 813 513 (B.I.A. Feb. 18, 2011), aff’g No. A094 813 513
16 (Immig. Ct. N.Y. City Apr. 1, 2009). We assume the parties’
17 familiarity with the underlying facts and procedural history
18 in this case.
19 Under the circumstances of this case, we review both
20 the BIA’s and the IJ’s decisions, including the portions of
21 the IJ’s decision not expressly discussed by the BIA. See
22 Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).
23 The applicable standards of review are well-established.
24 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562
2
1 F.3d 510, 513 (2d Cir. 2009). For applications like this
2 one, governed by the REAL ID Act of 2005, the agency may
3 base a credibility finding on an asylum applicant’s
4 demeanor, the plausibility of his account, and
5 inconsistencies in his statements, without regard to whether
6 they go “to the heart of the applicant’s claim.” 8 U.S.C.
7 § 1158(b)(1)(B)(iii); Matter of J-Y-C-, 24 I. & N. Dec. 260,
8 265 (B.I.A. 2007). We defer to an IJ’s credibility
9 determination “unless, from the totality of the
10 circumstances, it is plain that no reasonable fact-finder
11 could make such an adverse credibility ruling.” Xiu Xia Lin
12 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). Analyzed
13 under the REAL ID Act, the agency’s adverse credibility
14 determination is supported by substantial evidence.
15 In finding Diallo not credible, the agency reasonably
16 relied on inconsistencies in the record regarding his
17 position in the student council. See 8 U.S.C.
18 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167; Matter
19 of J-Y-C-, 24 I. & N. Dec. at 265. Diallo attempted to
20 explain the conflict between his testimony that he was the
21 general secretary and his application indicating that he was
22 arrested with the general secretary by arguing that the
3
1 preparer of the application may have made a mistake. The
2 agency was entitled, however, to disregard this explanation
3 because, upon review of the record, it would not necessarily
4 be compelling to a reasonable fact-finder. See Majidi v.
5 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
6 The agency also reasonably relied on inconsistencies in
7 the record regarding where Diallo received medical treatment
8 in finding him not credible. See 8 U.S.C.
9 § 1158(b)(1)(B)(iii). As the agency noted, Diallo initially
10 testified that his uncle secured his release so that he
11 could be treated at the hospital, later testified that he
12 received treatment at home, and yet later testified that he
13 registered at Wichita State “after [he] got out of the
14 hospital.” Notwithstanding Diallo’s argument to the
15 contrary, these inconsistencies were a proper basis for the
16 agency’s adverse credibility determination. See 8 U.S.C.
17 § 1158(b)(1)(B)(iii); Matter of J-Y-C-, 24 I. & N. Dec. at
18 260.
19 Similarly, the agency reasonably relied on omissions in
20 Diallo’s uncle’s letter in finding him not credible. See
21 Xiu Xia Lin, 534 F.3d at 166 n.3. Diallo testified that his
22 uncle was fired from his government job, imprisoned, and had
4
1 his property destroyed in retaliation for helping Diallo
2 flee Guinea; however, Diallo’s uncle’s letter fails to
3 mention any of these events. Although Diallo argues that he
4 should not be faulted for his uncle’s mistake, the agency
5 was entitled to rely on this omission in finding him not
6 credible. See Xiu Xia Lin, 534 F.3d at 166 n.3; see Majidi,
7 430 F.3d at 80-81. Having found Diallo not credible, the
8 agency reasonably noted that his failure to provide
9 corroborative evidence further undermined his credibility,
10 especially given Diallo’s concession that medical records
11 were available. See Biao Yang v. Gonzales, 496 F.3d 268,
12 273 (2d Cir. 2007).
13 In addition, the agency did not err in finding that
14 Diallo failed to establish a well-founded fear of
15 persecution based on his Union for Progress and Renewal
16 (“UPR”) activities in the United States. See Jian Xing
17 Huang v. INS, 421 F.3d 125, 128-29 (2d Cir. 2005). While
18 Diallo contends that the IJ erred by discrediting his UPR
19 membership card due to a lack of foundation, the weight
20 afforded to documentary evidence is generally a matter of
21 agency discretion. Xiao Ji Chen v. U.S. Dep’t of Justice,
22 471 F.3d 315, 342 (2d Cir. 2006); see In re C-Y-Z-, 21 I. &
23 N. Dec. 915, 920 (B.I.A. 1997). Given that Diallo failed to
5
1 offer any other evidence of his UPR membership, the agency
2 did not err in its decision to give diminished evidentiary
3 weight to his UPR membership card. See Qin Wen Zheng v.
4 Gonzales, 500 F.3d 143, 146-49 (2d Cir. 2007).
5 Similarly, the agency’s finding that Diallo failed to
6 show a nexus between the persecution he feared on account of
7 his UPR membership and a protected ground is supported by
8 substantial evidence. See 8 U.S.C. § 1252(b)(4)(B). As the
9 agency noted, Diallo’s testimony indicated that he may not
10 have had any political motive in joining the UPR. Under
11 such circumstances, the agency’s finding that Diallo failed
12 to show a nexus between his alleged fear of persecution and
13 his UPR membership, is supported by substantial evidence.
14 See Siewe v. Gonzales, 480 F.3d 160, 166-68 (2d Cir. 2007);
15 Ahmed v. Ashcroft, 286 F.3d 611, 612 (2d Cir. 2002).
16 In light of the agency’s adverse credibility and burden
17 findings, it did not err in denying Diallo’s applications
18 for relief. See Xiu Xia Lin, 534 F.3d at 167; Paul v.
19 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006) (holding that the
20 agency need not separately analyze a withholding of removal
21 claim based on the same facts as an applicant’s asylum
22 claim); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
23 520, 523 (2d Cir. 2006) (same, with respect to CAT).
6
1 We decline to consider Diallo’s argument that the
2 agency erred by refusing to admit some evidence of country
3 conditions, as it was not raised before the agency. See Lin
4 Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 120 (2d Cir.
5 2007).
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, any stay of
8 removal that the Court previously granted in this petition
9 is VACATED, and any pending motion for a stay of removal in
10 this petition is DENIED as moot. Any pending request for
11 oral argument in this petition is DENIED in accordance with
12 Federal Rule of Appellate Procedure 34(a)(2), and Second
13 Circuit Local Rule 34.1(b).
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
16
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