Diakite v. Lynch ( 2016 )

12-3114
Diakite v. Lynch
BIA
Abrams, IJ
A079 290 917
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 18th day of March, two thousand sixteen.
PRESENT: ROSEMARY S. POOLER,
REENA RAGGI,
PETER W. HALL,
Circuit Judges.
_____________________________________
ABOUBAKAR DIAKITE,
Petitioner,
v. 12-3114-ag
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.*
_____________________________________
FOR PETITIONER: Khagendra Gharti Chhetry, Chhetry &
Associates, New York, New York.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Terri J. Scadron,
*
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. as Respondent.
Assistant Director; Siu P. Wong,
Trial Attorney, 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.
Petitioner Aboubakar Diakite, a native and citizen of
Mauritania, seeks review of a July 13, 2012 order of the
BIA, affirming the May 5, 2011 decision of Immigration Judge
(“IJ”) Steven Abrams, which pretermitted his application for
asylum and denied his application for withholding of removal
and relief under the Convention Against Torture (“CAT”). In
re Aboubakar Diakite, No. A079 290 917 (B.I.A. July 13,
2012), aff’g No. A079 290 917 (Immig. Ct. N.Y.C. May 5,
2011). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
Under the circumstances of this case, we have reviewed
both the BIA’s and IJ’s opinions. See Yun-Zui Guan v.
Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable
standards of review are well-established. See 8 U.S.C.
§ 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
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(2d Cir. 2009). As an initial matter, because Diakite does
not challenge the agency’s pretermission of his asylum claim
as untimely, we do not address it here.
1. Past Persecution
In pre-REAL ID Act cases, such as this one, an adverse
credibility determination must be based on “specific, cogent
reasons” that “bear a legitimate nexus” to the finding, and
any discrepancy must be “substantial” when measured against
the record as a whole. See Secaida-Rosales v. INS, 331 F.3d
297, 307 (2d Cir. 2003) (internal quotation marks omitted).
In finding that Diakite failed credibly to establish past
persecution, the agency reasonably relied on the
inconsistency between his testimony and asylum statement
regarding the number of times that the Mauritanian
authorities deported his family to Senegal. Contrary to
Diakite’s assertions, the agency properly determined that
this inconsistency went to the heart of his claim because it
concerned the very persecution that he allegedly suffered in
Mauritania. See Majidi v. Gonzales, 430 F.3d 77, 81 (2d
Cir. 2005) (providing that inconsistencies between written
statement and testimony regarding politically motivated
attack supported adverse credibility finding, as it was “an
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example of the very persecution from which he sought
asylum”); Belortjaja v. Gonzales, 484 F.3d 619, 626 (2d Cir.
2007) (upholding adverse credibility finding based on
omissions from affidavit of two incidents that went to heart
of asylum claim). Indeed, Diakite’s former attorney
conceded before the IJ that this inconsistency was not
minor.
While Diakite attributed the inconsistency to his youth
at the relevant time or to a mistake by the preparer of his
initial application, the agency reasonably rejected these
explanations. It noted first that, although Diakite was
only fifteen at the time of his first alleged deportation,
he should have remembered living in a Senegalese refugee
camp for two years. See Majidi, 430 F.3d at 80-81 (noting
that agency need not credit applicant’s explanations for
inconsistent testimony unless explanations would compel
reasonable fact-finder to do so). Additionally, although
the “circumstances surrounding the application process do
not often lend themselves to a perfectly complete and
comprehensive recitation,” Secaida-Rosales, 331 F.3d at 308,
the agency reasonably concluded that this concern was
substantially diminished here by the fact that Diakite also
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omitted his second deportation from a revised application
statement prepared with the assistance of counsel and
submitted for the purpose of supplementing the application
filed by his initial preparer. Because we find the agency’s
adverse credibility determination to be supported by
substantial evidence on the basis of this inconsistency
alone, we decline to consider the numerous additional bases
cited by the IJ for finding Diakite not credible. See INS
v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule
courts and agencies are not required to make findings on
issues the decision of which is unnecessary to the results
they reach.”).
2. Future Persecution and Torture
Contrary to Diakite’s assertion, the agency did not
fail to consider whether there was a pattern or practice of
persecution of persons similarly situated to him in
Mauritania. Although the agency did not expressly reference
a pattern-or-practice based claim, it effectively rejected
such a theory when, based on the 2010 Human Rights Report,1
1
Diakite’s contention that the agency violated due
process by taking administrative notice of the 2010 Human
Rights Report is without merit. See Qun Yang v. McElroy,
277 F.3d 158, 163 n.4 (2d Cir. 2002) (“It is well-settled
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it concluded that Diakite had not established a well-founded
fear of future persecution on account of his race and
ethnicity. For example, the agency found, among other
things, that conditions in Mauritania for persons of
Diakite’s race and ethnicity had fundamentally changed
because: (1) Maaouya Ould Sid’Ahmed Taya, the president who
had overseen the forced deportation of Afro-Mauritanians
between 1989 and 1991, had lost power in a 2005 coup;
(2) after the 2009 presidential election, seven of the
government’s 29 cabinet members were Afro-Mauritanians; and
(3) the government had undertaken a large-scale return and
reintegration program for Afro-Mauritanians expelled between
1989 and 1991, which included the return of over 17,000
people in 2009. Because the changed circumstances
determination informing the agency’s rejection of any
pattern-or-practice basis for a professed fear of
persecution was thus ”tethered to the evidentiary record, we
will accord deference to the finding.” Siewe v. Gonzales,
480 F.3d 160, 169 (2d Cir. 2007); see also id. at 68
(“[S]upport for a contrary inference – even one more
that the BIA has the authority to take administrative
notice of current events bearing on an applicant’s
well-founded fear of persecution.”).
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plausible or more natural – does not suggest error.”); Xiao
Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 432 (2d Cir.
2006) (holding that weight afforded to applicant’s evidence
in immigration proceedings lies largely within discretion of
agency).
Having reasonably determined that Diakite failed to
establish a well-founded fear of persecution on the basis of
his race and ethnicity, the agency did not err in finding
that he also failed to demonstrate a likelihood of
persecution or torture on this basis and, therefore, was
ineligible for asylum, withholding of removal, and CAT
relief. See Ramsameachire v. Ashcroft, 357 F.3d 169, 178
(2d Cir. 2004).
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 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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