Ikpe v. Holder , 590 F. App'x 62 ( 2014 )

12-3310
Ikpe v. Holder
BIA
Straus, IJ
A076 111 365
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
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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 13th day of November, two thousand fourteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
DENNY CHIN,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
UBONG NYONG IKPE,
Petitioner,
v. 12-3310
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Ronald D. Richey, Rockville, MD.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; William C. Peachey,
Assistant Director; Matthew A.
Spurlock, 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 Ubong Nyong Ikpe, a native and citizen of
Nigeria, seeks review of a July 10, 2012 order of the BIA,
affirming the September 20, 2010 decision of an Immigration
Judge (“IJ”), which denied asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”). In
re Ubong Nyong Ikpe, No. A076 111 365 (B.I.A. July 10,
2012), aff’g No. A076 111 365 (Immig. Ct. Hartford, CT,
Sept. 20, 2010). We assume the parties’ familiarity with
the underlying facts and procedural history in this case.
Under the circumstances of this case, we review the
decisions of both the IJ and the BIA. 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); see also Yanqin Weng v. Holder, 562 F.3d
510, 513 (2d Cir. 2009); Xiu Xia Lin v. Mukasey, 534 F.3d
162, 165-66 (2d Cir. 2008) (per curiam).
For applications such as Ikpe’s, which are governed by
the REAL ID Act, the agency may base a credibility finding
on an applicant’s demeanor, the plausibility of his account,
and inconsistencies in his statements, without regard to
whether they go “to the heart of the applicant’s claim.” 8
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U.S.C. § 1158(b)(1)(B)(iii); Matter of J-Y-C-, 24 I. & N.
Dec. 260, 265 (B.I.A. 2007). “We defer therefore to an IJ’s
credibility determination unless, from the totality of the
circumstances, it is plain that no reasonable fact-finder
could make such an adverse credibility ruling.” Xiu Xia
Lin, 534 F.3d at 167.
The adverse credibility determination was properly
based on the inconsistency between Ikpe’s application and
testimony about whether his mother was threatened before her
attempted murder in December 2008. See 8 U.S.C.
§ 1158(b)(1)(B)(iii). Ikpe’s application provided that his
mother began receiving threatening phone calls branding her
a traitor for leaving the Alliance for Democracy Party in
2004 and that Ikpe personally received some of these calls
in the United States. Ikpe’s application also stated that
his mother received calls threatening the lives of her and
her children if she persisted in advancing the cause of
women and children in Nigeria, prior to her attempted
murder, and that Ikpe personally received one such call in
the United States on December 12, 2008. However, Ikpe
testified that neither he nor his mother had received any
threats before her attempted murder on December 14, 2008.
Although Ikpe challenges the materiality of this
inconsistency, the agency properly determined that it went
to the heart of his claim because the threatening phone
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calls were the only link between Ikpe and his mother’s
political activities and murder in Nigeria. The adverse
credibility determination was therefore properly based on
this discrepancy. Xian Tuan Ye v. DHS, 446 F.3d 289, 295
(2d Cir. 2006); Xu Duan Dong v. Ashcroft, 406 F.3d 110,
111-12 (2d Cir. 2005).
Having reasonably called Ikpe’s credibility into
question, the agency did not err in finding his credibility
further undermined by an absence of corroborating evidence.
See 8 U.S.C. § 1158(b)(1)(B)(ii). We have recognized that
an applicant’s failure to corroborate his testimony may bear
on credibility, either because the absence of particular
corroborating evidence is viewed as suspicious, or because
the absence of corroboration makes an applicant unable to
rehabilitate testimony that has already been called into
question. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
Cir. 2007) (per curiam). Here, the agency reasonably
determined that Ikpe’s failure to provide any evidence
corroborating the threats he received prevented him from
rehabilitating his credibility. The agency also reasonably
observed that Ikpe did not provide any statements from his
siblings in Nigeria, whom he testified were in hiding after
receiving similar threats.
Based on the foregoing, we find that the credibility
determination is supported by substantial evidence because
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it cannot be said “that no reasonable fact-finder could make
such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d
at 167. The agency therefore did not err in denying asylum,
withholding of removal, and CAT relief on credibility
grounds because all claims shared the same factual
predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
523 (2d Cir. 2005). Accordingly, we decline to consider the
agency’s pretermission of asylum and alternative denial of
asylum and withholding of removal on nexus grounds. 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.”).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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