Bassel v. Holder , 353 F. App'x 648 ( 2009 )

07-5426-ag
Bassel v. Holder
BIA
Defonzo, IJ
A095 838 333
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
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 24 th day of November, two thousand nine.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 BARRINGTON D. PARKER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 ______________________________________
12 BLAISE DAME BASSEL,
13 Petitioner,
14
15 v. 07-5426-ag
16 NAC
17
18 ERIC H. HOLDER, JR., 1
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 ___________________________________
1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as the respondent in this case.
1 FOR PETITIONER: Ronald S. Salomon, New York, New
2 York.
3
4 F O R RESPONDENT: Michael F. Hertz, Acting Assistant
5 Attorney General, Civil Division;
6 Linda S. Wernery, Assistant
7 Director; Lindsay B. Glauner, Trial
8 Attorney, Office of Immigration
9 Litigation, U.S. Department of
10 Justice, Washington, D.C.
11
12 UPON DUE CONSIDERATION of this petition for review of a
13 decision of the Board of Immigration Appeals (“BIA”), it is
14 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
15 review is DENIED.
16 Petitioner Blaise Dame Bassel, a native and citizen of
17 the Republic of Congo, seeks review of a November 5, 2007
18 order of the BIA affirming the March 8, 2006 decision of
19 Immigration Judge Paul A. DeFonzo, pretermitting his
20 application for asylum and denying his application for
21 withholding of removal and relief under the Convention
22 Against Torture (“CAT”). In re Blaise Dame Bassel, No. A095
23 838 333 (B.I.A. Nov. 5, 2007), aff’g No. A095 838 333
24 (Immig. Ct. N.Y. City Mar. 8, 2006). We assume the parties’
25 familiarity with the underlying facts and procedural history
26 in this case.
27 We review the agency’s factual findings, including
28 adverse credibility determinations, under the substantial
2
1 evidence standard.
2 8 U.S.C. § 1252(b)(4)(B); see, e.g., Corovic v. Mukasey, 519
3 F.3d 90, 95 (2d Cir. 2008). Questions of law and the
4 application of law to undisputed fact are reviewed de novo.
5 Salimatou Bah v. Mukasey, 529 F.3d 99, 104 (2d Cir. 2008).
6 The agency’s adverse credibility determination is
7 supported by substantial evidence. See Corovic, 519 F.3d at
8 95. The IJ identified discrepancies between Bassel’s
9 testimony and the information he provided in his application
10 regarding whether his father was politically active; whether
11 his father was murdered by ethnic Mboshis or by COBRAs;
12 whether he and his family were beaten by his father’s
13 killers at the time his father was murdered; and whether,
14 after fleeing the Republic of Congo, Bassel stayed in the
15 Democratic Republic of Congo for two weeks or approximately
16 seven months prior to going to Senegal. Each discrepancy
17 went to the heart of Bassel’s claim because each calls into
18 question the circumstances surrounding Bassel’s claim of
19 past persecution and his fear that it is more likely than
20 not that he would be persecuted if he returns to the
21 Republic of Congo. See Hongsheng Leng v. Mukasey, 528 F.3d
22 135, 141-42 (2d Cir. 2008).
3
1 When asked to explain the discrepancies, Bassel
2 testified that he was confused or that he did not
3 understand. However, because Bassel had the opportunity to
4 review his application and prepared a supplement to his
5 application with his lawyer’s assistance, no reasonable fact
6 finder would be compelled to accept his explanations. See
7 Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
8 Ultimately, we find no error in the IJ’s adverse
9 credibility determination. Thus, the IJ properly denied
10 Bassel’s application for withholding of removal and CAT
11 relief because the only evidence of a threat to Bassel’s
12 life or freedom depended on his credibility. 2 See Paul v.
13 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); See Xue Hong
14 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.
15 2005).
16 For the foregoing reasons, the petition for review is
17 DENIED. As we have completed our review, any stay of
18 removal that the Court previously granted in this petition
19 is VACATED, and any pending motion for a stay of removal in
20 this petition is DISMISSED as moot. Any pending request for
2
Bassel does not challenge the IJ’s pretermission of
his asylum application as untimely.
4
1 oral argument in this petition is DENIED in accordance with
2 Federal Rule of Appellate Procedure 34(a)(2), and Second
3 Circuit Local Rule 34(b).
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
6
7 By:___________________________
5