Diallo v. Lynch

13-2362
Diallo v. Lynch
BIA
Zagzoug, I.J.
A200 731 912
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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 24th day of August, two thousand fifteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
RICHARD C. WESLEY,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
ALPHA YAYA DIALLO,
Petitioner,
v. 13-2362
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Theodore Vialet, New York, N.Y.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; M. Jocelyn Lopez Wright,
Senior Litigation Counsel; Margot L.
Carter, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is DENIED.
Alpha Yaya Diallo, a native and citizen of Guinea,
seeks review of a May 20, 2013, decision of the BIA
affirming the October 24, 2011, decision of an Immigration
Judge (“IJ”) denying asylum, withholding of removal, and
Convention Against Torture (“CAT”) relief. In re Alpha Yaya
Diallo, No. A200 731 912 (B.I.A. May 20, 2013), aff’g No.
A200 731 912 (Immig. Ct. N.Y. City Oct. 24, 2011). We
assume the parties’ familiarity with the underlying facts,
procedural history, and issues presented for review.
We have reviewed both the BIA’s and IJ’s decisions.
See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.
2005) (per curiam). The 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).
In his petition for review, Diallo challenges the
agency’s adverse credibility and lack of corroboration
determinations. Diallo alleges that his family was attacked
by a military junta, and he fears he will be persecuted on
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account of his ethnicity and political beliefs if he returns
to Guinea.
Turning first to the adverse credibility determination,
for asylum applications, like Diallo’s, governed by the REAL
ID Act, the agency may, “[c]onsidering the totality of the
circumstances,” base a credibility finding on
inconsistencies in the applicant’s statements and other
record evidence without regard to whether they go “to the
heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
163-64 (2d Cir. 2008) (per curiam). The agency’s adverse
credibility determination is supported by substantial
evidence.
First, as the IJ found, the inconsistencies in Diallo’s
statements call his credibility into question. Diallo
initially testified that his family was attacked by members
of the military in July 2009, but when asked why his
application listed that attack as occurring in September
2009, Diallo stated that he was not sure when his family was
attacked. The attack is further called into question by
Diallo’s wife’s letter, which stated that “events” occurred
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in September 2009, but the family was attacked in October
2009. The agency reasonably relied on this inconsistency.
The adverse credibility determination is further
supported by inconsistencies related to harm suffered by
Diallo’s relatives. Diallo testified that his cousin was
killed in July 2009, but his application listed the date as
September 28, 2009. Second, and more glaring, Diallo
testified that his uncle had been arrested by the military
and was either dead or in prison, but his wife’s statement
reflected that Diallo’s uncle had been released. The agency
was not required to credit Diallo’s explanation that people
had kept the truth from his wife because his wife would be
emotional. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d
Cir. 2005).
Finally, the agency found material omissions in
Diallo’s asylum application, further undermining his
credibility. Xiu Xia Lin, 534 F.3d at 166 n.3 (an omission
in the applicant’s testimony or supporting documents may
“serve as a proper basis for an adverse credibility
determination,” as an omission is the functional equivalent
of an inconsistency). Diallo testified that he was “on the
list” of the Guinean military, that he was in hiding from
1998 to 2008, and that the Guinean military told his wife
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that they planned to kill him. Diallo conceded that he
omitted these facts from his application, but argues that an
application need not contain every detail. Although it is
true that an alien need not list every detail in an
application, see Pavlova v. INS, 441 F.3d 82, 90 (2d Cir.
2006), here the agency reasonably relied on the omission
because Diallo’s application was lengthy and detailed
regarding other incidents, see Xiu Xia Lin, 534 F.3d at 167.
The agency also considered whether Diallo separately
met his burden of showing a well-founded fear of persecution
on account of his U.S. political activities and ethnicity.
When, as here, testimony had already been called into
question, the agency may reasonably look to whether
corroborating evidence satisfies the applicant’s burden.
See 8 U.S.C. § 1158(b)(1)(B)(ii).
Diallo claimed that the Guinean military was aware of
his political protest activities in the United States
because they were televised in Guinea and he was a known
member of the Union of Democratic Forces of Guinea (“UDFG”).
However, as the agency found, Diallo failed to submit any
evidence showing that the Guinean media broadcast these
protests. And he failed to establish his UDFG membership.
While he submitted a document purportedly establishing his
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UDFG membership, the document is entitled “letter for
recommendation,” and identifies UDFG’s mission statement; it
does not state that Diallo is a UDFG member. Nor did Diallo
call any witnesses to testify about his political
activities. As Diallo did not testify credibly, the agency
reasonably considered Diallo’s lack of corroboration. 8
U.S.C. § 1158(b)(1)(B)(ii); Chuilu Liu v. Holder, 575 F.3d
193, 196-97 (2d Cir. 2009).
Diallo’s alleged fear of future persecution on account
of his political opinion and ethnicity is also undermined by
the country conditions evidence he relies on. In his brief,
Diallo argues that a 2010 State Department report documented
attacks against UDFG supporters and ethnic Fulanis. A
review of that report shows general violence related to the
2010 Guinean presidential election, with members of both
major political parties engaged in violent protests. This
general violence is insufficient to establish a well-founded
fear of future persecution. See Melgar de Torres v. Reno,
191 F.3d 307, 314 n.3 (2d Cir. 1999).
The inconsistencies and omissions provide substantial
evidence to support the adverse credibility determination.
See Xiu Xia Lin, 534 F.3d at 167. Accordingly, absent
credible testimony regarding past persecution, the agency
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reasonably concluded that the lack of corroborating evidence
about the Guinean military’s alleged interest in harming
Diallo or his family prevented Diallo from meeting his
burden of proof. 8 U.S.C. § 1158(b)(1)(B)(ii). As Diallo’s
claims all share the same factual predicate, the adverse
credibility determination and corroboration finding are
dispositive of asylum, withholding of removal, and CAT
relief. See Lecaj v. Holder, 616 F.3d 111, 119-20 (2d Cir.
2010); Paul v. Gonzales, 444 F.3d 148, 155-57 (2d Cir.
2006).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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