Guediara v. Sessions

16-2625
Guediara v. Sessions
BIA
Sichel, IJ
A089 193 531
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.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 8th day of November, two thousand seventeen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 RICHARD C. WESLEY,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 MOUSSA GUEDIARA, AKA YAYA CAMARA,
14 Petitioner,
15
16 v. 16-2625
17 NAC
18 JEFFERSON B. SESSIONS III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gary J. Yerman, New York, NY.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; Jessica A.
27 Dawgert, Senior Litigation Counsel;
28 Yanal H. Yousef, Trial Attorney,
29 Office of Immigration Litigation,
30 United States Department of Justice,
31 Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Moussa Guediara, a native and citizen of Côte
6 d’Ivoire, seeks review of a June 30, 2016, decision of the BIA
7 affirming a May 12, 2015, decision of an Immigration Judge
8 (“IJ”) denying Guediara’s application for asylum, withholding
9 of removal, and relief under the Convention Against Torture
10 (“CAT”). In re Moussa Guediara, No. A089 193 531 (B.I.A. June
11 30, 2016), aff’g No. A089 193 531 (Immig. Ct. N.Y. City May 12,
12 2015). We assume the parties’ familiarity with the underlying
13 facts and procedural history in this case.
14 When the BIA summarily affirms the IJ’s decision, we review
15 the IJ’s decision, as modified by the BIA, i.e., minus the
16 findings regarding timeliness and changed circumstances that
17 the BIA did not reach. See Xue Hong Yang v. U.S. Dep’t of
18 Justice, 426 F.3d 520, 522 (2d Cir. 2005). Petitioner raises
19 two issues on appeal: (1) whether the agency erred in relying
20 on fingerprint evidence from the Department of Homeland
21 Security (“DHS”); and (2) whether substantial evidence supports
22 the agency’s determination that Guediara was not credible.
2
1 I. Admission of Fingerprint Evidence
2 “The due process test for admissibility of evidence in a
3 deportation hearing is whether the evidence is probative and
4 whether its use is fundamentally fair.” Felzcerek v. INS, 75
5 F.3d 112, 115 (2d Cir. 1996) (internal quotation marks omitted).
6 “In the evidentiary context, fairness is closely related to the
7 reliability and trustworthiness of the evidence.” Id. While
8 “the strict rules of evidence do not apply in deportation
9 proceedings,” a document’s “admissibility under the Federal
10 Rules of Evidence lends strong support to the conclusion that
11 admission of the evidence comports with due process.” Id. at
12 116. “Records made by public officials in the ordinary course
13 of their duties . . . evidence strong indicia of reliability.
14 . . . because public officials are presumed to perform their
15 duties properly and generally lack a motive to falsify
16 information.” Id.; see also Barradas v. Holder, 582 F.3d 754,
17 763 (7th Cir. 2009) (“[W]hen the evidence introduced is that
18 recorded by a DHS agent in a public record, the absent agent
19 cannot be presumed to be an unfriendly witness or other than
20 an accurate recorder. Establishing an automatic right to
21 cross-examine the preparers of such documents would place an
22 unwarranted burden on the DHS.” (internal citations and
3
1 quotation marks omitted)). A petitioner can overcome this
2 presumption by providing evidence that undermines the
3 reliability of the official records in question. Felzcerek,
4 75 F.3d at 117.
5 The fingerprint evidence in this case—printouts from a DHS
6 database tracking the entry of aliens into the United States—are
7 official records prepared by DHS agents in the ordinary course
8 of their duties. Because these official records are presumed
9 to be reliable, id. at 116, and Guediara did not introduce any
10 evidence calling into question their reliability (such as
11 evidence of tampering or mistake), DHS was not required to call
12 a witness to document the chain of custody or preparation of
13 the records.
14 Furthermore, DHS called a fingerprint specialist whom
15 Guediara had an opportunity to cross examine. While Woods did
16 not have personal knowledge of the preparation or chain of
17 custody of the fingerprints, his testimony helped to establish
18 the records’ reliability by describing how he obtained the
19 fingerprints from the DHS database, confirming that the prints
20 did not match, and explaining that the database would
21 automatically consolidate matching fingerprints even if an
22 individual gave a different name. Ultimately, it was up to the
4
1 IJ to weigh the DHS evidence and Woods’s testimony against
2 Guediara’s conflicting testimony regarding his date of entry.
3 Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013) (“We defer to
4 the agency’s determination of the weight afforded to an alien’s
5 documentary evidence.”). We find no error in the agency’s
6 admission of the DHS fingerprint evidence.
7 II. Adverse Credibility Ruling
8 We review the agency’s credibility determination for
9 substantial evidence. Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165
10 (2d Cir. 2008); see also 8 U.S.C. § 1252(b)(4). The agency
11 may, “[c]onsidering the totality of the circumstances,” base
12 an adverse credibility finding on inconsistencies between an
13 asylum applicant’s testimony and other record evidence.
14 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.
15 Credibility rulings are “conclusive unless any reasonable
16 adjudicator would be compelled to conclude to the contrary.”
17 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin, 534 F.3d at 165.
18 The fingerprint evidence contradicting Guediara’s
19 testimony about his date and manner of entry constitutes
20 substantial evidence supporting the adverse credibility
21 determination. The discrepancy about Guediara’s arrival
22 called into question when he entered the United States and
5
1 whether he was in Côte d’Ivoire at the time of his alleged
2 persecution, thereby calling into question the entirety of his
3 claim. See Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007)
4 (“[A] single false document or a single instance of false
5 testimony may (if attributable to petitioner) infect the
6 balance of the alien’s uncorroborated or unauthenticated
7 evidence.”). Guediara’s speculation that there may have been
8 another individual named Yaya Camara who entered the United
9 States on the same day does not resolve the issue because it
10 does not account for the lack of any entry record with
11 fingerprints matching Guediara’s. See Majidi v. Gonzales, 430
12 F.3d 77, 80-81 (2d Cir. 2005) (“A petitioner must do more than
13 offer a plausible explanation for his inconsistent statements
14 to secure relief; he must demonstrate that a reasonable
15 fact-finder would be compelled to credit his testimony.”
16 (internal quotation marks omitted)).
17 Furthermore, Guediara did not rehabilitate this testimony.
18 See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An
19 applicant’s failure to corroborate his or her testimony may bear
20 on credibility, because the absence of corroboration in general
21 makes an applicant unable to rehabilitate testimony that has
22 already been called into question.”). While his certificate
6
1 of citizenship and attestation of identity corroborated his
2 Ivorian identity, the documents did not show he was in Cote
3 d’Ivoire in 2006, when the alleged persecution occurred, or show
4 when he entered the United States. As the IJ found, Guediara’s
5 timeline was further undermined by other documentary evidence:
6 the signature on a 2006 certificate allegedly reflecting the
7 sale of his business did not match Guediara’s signature on his
8 asylum application; and Guediara submitted a political
9 membership card for 2004-2005 but not for 2006-2007.
10 Given the discrepancy between Guediara’s testimony and the
11 fingerprint evidence regarding his entry date as well as the
12 lack of corroborating evidence, the totality of the
13 circumstances supports the adverse credibility ruling.
14 8 U.S.C. § 1158(b)(1)(B)(iii); Siewe, 480 F.3d at 170; Biao
15 Yang, 496 F.3d at 273. Because Guediara’s claims were all based
16 on the same factual predicate, the adverse credibility
17 determination is dispositive of asylum, withholding of removal,
18 and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d
19 Cir. 2006).
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, any stay of removal
22 that the Court previously granted in this petition is VACATED,
7
1 and any pending motion for a stay of removal in this petition
2 is DISMISSED as moot. Any pending request for oral argument
3 in this petition is DENIED in accordance with Federal Rule of
4 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
5 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
8