Tunkara v. Holder , 387 F. App'x 65 ( 2010 )

09-3041-ag
Tunkara v. Holder
BIA
Brennan, IJ
A 098 149 071
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 21 st day of July, two thousand ten.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 REENA RAGGI,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _______________________________________
12
13 DAGUMIE TUNKARA,
14 Petitioner,
15
16 v. 09-3041-ag
17 NAC
18 ERIC H. HOLDER, JR., U.S. ATTORNEY
19 GENERAL, ET AL.,
20 Respondents.
21 ______________________________________
22
23 FOR PETITIONER: Brian I. Kaplan, New York, New York.
24
25 FOR RESPONDENTS: Tony West, Assistant Attorney
26 General; Emily Anne Radford,
27 Assistant Director; Aviva L.
28 Poczter, Senior Litigation Counsel,
29 Office of Immigration Litigation,
30 Washington, D.C.
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 in part and DISMISSED in part.
5 Petitioner Dagumie Tunkara, a native and citizen of
6 Sierra Leone, seeks review of the June 17, 2009, order of
7 the BIA affirming the September 20, 2007, decision of
8 Immigration Judge (“IJ”) Noel Brennan pretermitting his
9 application for asylum, and denying his application for
10 withholding of removal and CAT relief. In re Dagumie
11 Tunkara, No. A 098 149 071 (B.I.A. June 17, 2009), aff’g No.
12 A 098 149 071 (Immig. Ct. N.Y. City Sept. 20, 2007). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case, we review both
16 the IJ’s and the BIA’s decisions. See Zaman v. Mukasey, 514
17 F.3d 233, 237 (2d Cir. 2008). The applicable standards of
18 review are well-established. See 8 U.S.C. § 1252(b)(4)(B);
19 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
20 Under 8 U.S.C. § 1158(a)(3), no court shall have
21 jurisdiction to review the agency’s finding that an asylum
22 application was untimely under 8 U.S.C. § 1158(a)(2)(B), or
2
1 its finding of neither changed nor extraordinary
2 circumstances excusing the untimeliness under 8 U.S.C.
3 § 1158(a)(2)(D). Notwithstanding that provision, however,
4 we retain jurisdiction to review constitutional claims and
5 “questions of law.” 8 U.S.C. § 1252(a)(2)(D). Here,
6 however, Tunkara merely challenges the IJ’s factual finding
7 regarding his date of arrival in the United States. Thus,
8 we are without jurisdiction to consider the IJ’s
9 pretermission of his asylum application and dismiss the
10 petition for review to that extent.
11 With respect to Tunkara’s application for withholding
12 of removal, we find that substantial evidence supports the
13 IJ’s adverse credibility determination. Tunkara does not
14 challenge the IJ’s findings that: (1) his vague and evasive
15 demeanor during his hearing undermined his credibility; (2)
16 his testimony that he secured his departure on a ship
17 leaving Sierra Leone solely by begging and without payment
18 was inconsistent with his written statement that he paid a
19 person to board the ship; and (3) his testimony that he
20 received civilian clothes when leaving the ship was
21 inconsistent with his written statement that he received a
22 cook’s uniform. Accordingly, those findings stand as valid
3
1 bases for the IJ’s adverse credibility determination. See
2 Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008).
3 Tunkara argues that his inconsistent statements
4 regarding the manner in which his mother was killed were
5 “ancillary” to his application for relief. To the contrary,
6 that discrepancy went to the heart of his claim that he was
7 detained and mistreated, and that his father and mother were
8 murdered because of their ethnic background and perceived
9 political opinion. See Secaida-Rosales v. INS, 331 F.3d
10 297, 307 (2d Cir. 2003). The IJ also did not err in basing
11 her adverse credibility determination, in part, on Tunkara’s
12 inconsistent statements regarding how and when he received
13 his passport. Even if those inconsistencies were more
14 minor, the IJ was entitled to consider them cumulatively
15 with the other discrepancies she identified. See Tu Lin v.
16 Gonzales, 446 F.3d 395, 402 (2d Cir. 2006) (emphasizing that
17 “even where an IJ relies on discrepancies or lacunae that,
18 if taken separately, concern matters collateral or ancillary
19 to the claim, ... the cumulative effect may nevertheless be
20 deemed consequential by the fact-finder”) (internal
21 quotation omitted); see also Liang Chen v. U.S. Att'y Gen.,
22 454 F.3d 103, 106-07 (2d Cir. 2006) (“[A]n IJ need not
4
1 consider the centrality vel non of each individual
2 discrepancy or omission” and can instead “rely upon the
3 cumulative impact of such inconsistencies, and may conduct
4 an overall evaluation of testimony in light of its
5 rationality or internal consistency and the manner in which
6 it hangs together with other evidence.”) (internal
7 quotations and citations omitted). Finally, the IJ did not
8 err in finding that Tunkara failed to adequately corroborate
9 his otherwise incredible claim. See Xiao Ji Chen v. U.S.
10 Dep’t of Justice, 471 F.3d 315, 341 (2d Cir. 2006) (holding
11 that an applicant’s failure to corroborate his testimony may
12 bear on credibility when the absence of corroboration in
13 general makes the applicant unable to rehabilitate testimony
14 that has already been called into question).
15 Because Tunkara’s claims for withholding of removal and
16 CAT relief were based on the same factual predicate, the
17 IJ’s adverse credibility determination undermined both
18 claims. See Xue Hong Yang v. U.S. Dep’t of Justice, 426
19 F.3d 520, 523 (2d Cir. 2005).
20 For the foregoing reasons, the petition for review is
21 DENIED in part and DISMISSED in part. As we have completed
22 our review, any stay of removal that the Court previously
5
1 granted in this petition is VACATED, and any pending motion
2 for a stay of removal in this petition is DISMISSED as moot.
3 Any pending request for oral argument in this petition is
4 DENIED in accordance with Federal Rule of Appellate
5 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
8
6