Gassama v. Holder , 383 F. App'x 79 ( 2010 )

09-3313-ag
Gassama v. Holder
BIA
Ferris, IJ
A096 252 832
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 6 th day of July, two thousand ten.
PRESENT:
RALPH K. WINTER,
RICHARD C. WESLEY,
PETER W. HALL,
Circuit Judges.
_______________________________________
DJIBY GASSAMA,
Petitioner,
v. 09-3313-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Djiby Gassama, pro se, Bronx, New
York.
FOR RESPONDENT: Tony West, Assistant Attorney
General, Civil Division; Mark C.
Walters, Senior Litigation Counsel,
Office of Immigration Litigation;
Zoe J. Heller, Civil Division, U.S.
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, Djiby Gassama, a native and citizen of
Mauritania, seeks review of a July 7, 2009, order of the BIA
affirming the October 10, 2007, decision of Immigration
Judge (“IJ”) Noel Anne Ferris denying petitioner’s
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Djiby
Gassama, No. A 096 252 832 (B.I.A. July 7, 2009), aff’g No.
A 096 252 832 (Immig. Ct. N.Y. City Oct. 10, 2007). We
assume the parties’ familiarity with the underlying facts
and procedural history of the case.
Under the circumstances of this case, we review the
decision of the IJ 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
Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008);
Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
Substantial evidence supports the IJ’s adverse
credibility determination. In making that determination,
the IJ found that: (1) Gassama’s testimony was “vague” and
that his demeanor reflected negatively on his credibility;
(2) he testified inconsistently regarding the incidents that
form the basis of his claim; and (3) it was implausible that
Gassama had no memory of key aspects of his past political
activities. The BIA affirmed the IJ’s adverse credibility
finding, holding that the IJ properly “identified material
inconsistencies . . . which are present in the record and
support the adverse credibility determination.” We are not
compelled to conclude to the contrary. See Majidi v.
Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
Although Gassama argues that he adequately explained
his inconsistent testimony, no reasonable factfinder would
have been compelled to credit his explanations. See id.
Moreover, contrary to Gassama’s claim, even if the
inconsistencies the IJ identified were minor, the IJ was
entitled to rely on their cumulative effect. See Tu Lin v.
Gonzales, 446 F.3d 395, 402 (2d Cir. 2006) (“[E]ven where an
IJ relies on discrepancies or lacunae that, if taken
separately, concern matters collateral or ancillary to the
2
claim, . . . the cumulative effect may nevertheless be
deemed consequential by the fact-finder.” (internal
citations omitted)); see also Liang Chen, 454 F.3d at 106-07
(“[A]n IJ need not consider the centrality vel non of each
individual discrepancy or omission” and can instead “rely
upon the cumulative impact of such inconsistencies, and may
conduct an overall evaluation of testimony in light of its
rationality or internal consistency and the manner in which
it hangs together with other evidence.”). Regardless, the
inconsistencies the IJ relied upon went to the heart of
Gassama’s claim because they were related to his alleged
persecution by Mauritanian authorities.
Inasmuch as each of Gassama’s claims share the same
factual predicate, the IJ’s adverse credibility
determination is fatal to his application for asylum,
withholding of removal, and CAT relief. 1 See Paul v.
Gonzales, 444 F.3d 148, 157 (2d Cir. 2006). Because the
adverse credibility determination is amply supported by the
record, we need not reach the agency’s alternate burden of
proof findings.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, 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
1
Contrary to the government’s argument that
Gassama waived any challenge to the IJ’s denial of CAT
relief, Gassama sets forth the standard for CAT relief in
his pro se brief and challenges the adverse credibility
determination - the underlying basis for the IJ’s denial
of that relief. Cf. Yueqing Zhang v. Gonzales, 426 F.3d
540, 541 n.1, 545 n.7 (2d Cir. 2005).
3