Doumbia v. Lynch , 649 F. App'x 99 ( 2016 )

14-3656
Doumbia v. Lynch
BIA
Nelson, IJ
A200 738 534
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 TO 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
23rd day of May, two thousand sixteen.
PRESENT:
REENA RAGGI,
DEBRA ANN LIVINGSTON,
DENNY CHIN,
Circuit Judges.
_____________________________________
YOUSSOUF DOUMBIA,
Petitioner,
v. 14-3656
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Gary J. Yerman, New York, N.Y.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Keith I.
McManus, Senior Litigation Counsel;
Jessica E. Burns, 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 Youssouf Doumbia, a native and citizen of the
Ivory Coast, seeks review of a September 8, 2014, decision of
the BIA affirming an April 10, 2013, decision of an Immigration
Judge (“IJ”) denying Doumbia’s application for asylum,
withholding of removal, and relief under the Convention Against
Torture (“CAT”). In re Youssouf Doumbia, No. A200 738 534
(B.I.A. Sept. 8, 2014), aff’g No. A200 738 534 (Immig. Ct. N.Y.
City Apr. 10, 2013). We assume the parties’ familiarity with
the underlying facts and procedural history in this case.
Under the circumstances of this case, where the BIA has
adopted and supplemented the IJ’s decision, we have reviewed
the IJ’s decision as supplemented by the BIA. See Yan Chen v.
Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
standards of review are well established. See 8 U.S.C.
§ 1252(b)(4)(B); Liu v. Holder, 575 F.3d 193, 194, 196 (2d Cir.
2009).
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The agency may require corroboration despite otherwise
credible testimony, and deny an application based on the failure
to provide such corroboration, if the corroborating evidence
is reasonably available. See 8 U.S.C. § 1158(b)(1)(B)(ii);
see also Chen v. Holder, 658 F.3d 246, 251-52 (2d Cir. 2011).
However, before denying a claim solely based on an applicant’s
failure to provide corroboration, the IJ must identify the
missing evidence, explain why it was reasonably available,
provide an opportunity for the applicant to explain the
omission, and assess any explanation given. See id. at 253;
Liu, 575 F.3d at 197-98.
In this case, it was reasonable for the IJ to require
corroboration because Doumbia’s testimony was evasive and
inconsistent at times and thus not sufficiently persuasive.
See 8 U.S.C. § 1158(b)(1)(B)(ii); see also Liu, 575 F.3d at
196-97. Moreover, the IJ properly identified the missing
evidence, noting that neither Doumbia’s wife nor mother had
submitted letters to corroborate his assertions of past harm
and fear of individualized harm in the future despite their
firsthand knowledge of the relevant events. This evidence was
reasonably available: Doumbia testified that he had received
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letters from his wife and mother while in the United States.
Doumbia was provided an opportunity to explain why this evidence
was missing, but he did not provide a compelling explanation.
See id. at 198 (“[T]he alien bears the ultimate burden of
introducing such evidence without prompting from the IJ.”).*
Accordingly, we find no error in the agency’s conclusion
that Doumbia did not adequately corroborate his claims of past
persecution and fear of future persecution. See 8 U.S.C.
§ 1252(b)(4). That finding is dispositive of asylum,
withholding of removal, and CAT relief because all three claims
were based on the same factual predicate. See Paul v. Gonzales,
444 F.3d 148, 156-57 (2d Cir. 2006).
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
*
Doumbia does not challenge the BIA’s decision insofar as it
declined to remand for consideration of his mother’s letter
submitted for the first time on appeal. See Zhang v. Gonzales,
426 F.3d 540, 545 n.7 (2d Cir. 2005). Regardless, the BIA did
not err in declining to consider the letter in the first
instance. See In re Fedorenko, 19 I. & N. Dec. 57, 74 (B.I.A.
1984); see also Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 156
(2d Cir. 2005).
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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
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