Drame v. Holder , 379 F. App'x 98 ( 2010 )


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  •     09-1967-ag
    Drame v. Holder
    BIA
    Bukszpan, IJ
    A078 719 884
    A078 719 885
    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 Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 1 st day of June, two thousand ten.
    PRESENT:
    REENA RAGGI,
    PETER W. HALL,
    DENNY CHIN,
    Circuit Judges.
    _______________________________________
    SOUFIANE DRAME, YOUSSOUPH DRAME,
    Petitioners,
    v.                                  09-1967-ag
    NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
    Respondent.
    _______________________________________
    FOR PETITIONERS:               Ronald S. Salomon, New York, New
    York.
    FOR RESPONDENT:                Tony West, Assistant Attorney
    General, Civil Division; James A.
    Hunolt, Senior Litigation Counsel;
    Christopher P. McGreal, Trial
    Attorney, Office of Immigration
    Litigation, Civil Division, 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, in part, and DISMISSED, in part.
    The Petitioners, Soufiane Drame and Youssouph Drame,
    allegedly natives and citizens of Mauritania, seek review of
    an April 9, 2009, order of the BIA affirming the July 10,
    2007, and December 5, 2007, decisions of Immigration Judge
    (“IJ”) Joanna Miller Bukszpan pretermitting their
    applications for asylum, and denying their applications for
    withholding of removal and relief under the Convention
    Against Torture (“CAT”). In re Drame, Nos. A078 719 884/885
    (B.I.A. Apr. 9, 2009), aff’g Nos. A078 719 884/885 (Immig.
    Ct. N.Y. City July 10 and Dec. 5, 2007). We assume the
    parties’ familiarity with the underlying facts and
    procedural history in this case.
    Under the circumstances of this case, we review the
    IJ’s decision as supplemented by the BIA’s decision. 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); Yanqin Weng v. Holder, 
    562 F.3d 510
    , 513 (2d Cir. 2009).
    I.   Asylum
    Title 8, Section 1158(a)(3), of the United States Code
    provides that no court shall have jurisdiction to review the
    agency’s finding that an asylum application was untimely
    under 
    8 U.S.C. § 1158
    (a)(2)(B), or its finding of neither
    changed nor extraordinary circumstances excusing the
    untimeliness under 
    8 U.S.C. § 1158
    (a)(2)(D).
    Notwithstanding that provision, we retain jurisdiction to
    review constitutional claims and questions of law. See
    
    8 U.S.C. § 1252
    (a)(2)(D). Because the Petitioners challenge
    only purely factual determinations and the agency’s exercise
    2
    of discretion, we lack jurisdiction to consider Petitioners’
    arguments, and we dismiss the petition for review to that
    extent. See 
    8 U.S.C. § 1158
    (a)(3).
    II.   Withholding of Removal and CAT Relief
    In denying withholding of removal and CAT relief, the
    IJ found that the Petitioners’ testimony was “extremely
    vague[].” In re Drame, Nos. A078 719 884/885, at 16. The
    BIA noted the IJ’s concerns about credibility, but
    concluded that she had not made an explicit credibility
    determination. The Petitioners argue that absent an
    adverse credibility determination, their testimony alone
    should have been sufficient to meet their burden. We
    disagree.
    Although an alien’s credible testimony may be
    sufficient to sustain his burden of proof without
    additional corroboration, “an applicant’s credible
    testimony may not always satisfy the burden of proof.” See
    Diallo v. INS, 
    232 F.3d 279
    , 286 (2d Cir. 2000). Rather,
    “in the right circumstances, the agency may deny relief to
    a petitioner on the ground that she has failed to provide
    sufficient corroboration for her otherwise credible
    testimony.” Niang v. Mukasey, 
    511 F.3d 138
    , 148 (2d Cir.
    2007). Before denying a claim solely because of an
    applicant’s failure to provide corroborating evidence, the
    agency must “(a) identify the particular pieces of missing,
    relevant documentation, and (b) show that the documentation
    at issue was reasonably available to the petitioner.” Jin
    Shui Qiu v. Ashcroft, 
    329 F.3d 140
    , 153 (2d Cir. 2003),
    overruled in part on other grounds by Shi Liang Lin v. U.S.
    Dep’t of Justice, 
    494 F.3d 296
    , 305 (2d Cir. 2007). An IJ
    is not required, however, to specify the points of
    testimony that require corroboration prior to the IJ’s
    disposition of the alien’s claim. See Chuilu Liu v.
    Holder, 
    575 F.3d 193
    , 198 (2d Cir. 2009).
    Here, the IJ found that the Petitioners’ testimony was
    so vague that she was not convinced that they were, as they
    alleged, even from Mauritania. The IJ thus evaluated the
    Petitioners’ identity documents, deeming them unreliable in
    light of forensic reports calling their authenticity into
    question. The IJ also took note of the Petitioners’
    3
    failure to provide any other documentation establishing
    their identity. It was reasonable for the IJ to do so
    because, as we have held, the weight afforded to an
    applicant’s evidence in immigration proceedings lies
    largely within the discretion of the agency. See Xiao Ji
    Chen v. U.S. Dep’t of Justice, 
    471 F.3d 315
    , 342 (2d Cir.
    2006). In that regard, the BIA’s supplemental analysis
    also noted that the Petitioners failed to demonstrate past
    persecution because they did not submit reasonably
    available evidence corroborating their claims that they
    were beaten and detained by Mauritanian authorities. See
    Diallo, 
    232 F.3d at 285-90
    .
    In light of the Petitioners’ vague testimony, and their
    limited, often questionable corroborative evidence, we find
    no error in the agency’s conclusion that the Petitioners
    failed to meet their burden of proof for withholding of
    removal and CAT relief. See Niang, 
    511 F.3d at 148
    .
    For the foregoing reasons, the petition for review is
    DISMISSED, in part, and DENIED, in part. 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
    4