Djigo v. Holder

07-5775-ag
Djigo v. Holder
BIA
Weisel, IJ
A73 677 556
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.
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 16 th day of February, two thousand ten.
5
6 PRESENT:
7 JON O. NEWMAN,
8 ROSEMARY S. POOLER,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________
12
13 ABDOUL AZIZ DJIGO,
14 Petitioner,
15
16 v. 07-5775-ag
17 NAC
18 ERIC H. HOLDER JR., ATTORNEY GENERAL, 1
19 Respondent.
20 _______________________________________
21
22 FOR PETITIONER: Ronald Salomon, New York, New York.
23
24 FOR RESPONDENT: Gregory G. Katsas, Assistant Attorney
25 General, Leslie McKay, Senior
26 Litigation Counsel, Lindsay B.
27 Glauner, Trial Attorney, Office of
28 Immigration Litigation, Civil
29 Division, United States Department of
30 Justice, Washington, D.C.
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 respondent in this case.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED.
5 Petitioner Abdoul Aziz Djigo, a native and citizen of
6 Mauritania, seeks review of a November 29, 2007 order of the
7 BIA affirming the October 24, 2005 decision of Immigration
8 Judge (“IJ”) Robert Weisel, denying his applications for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Abdoul Aziz
11 Djigo, No. A73 677 556 (B.I.A. Nov. 29, 2007), aff’g No. A73
12 677 556 (Immig. Ct. N.Y. City Oct. 24, 2005). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history of the case.
15 When the BIA summarily affirms the decision of the IJ
16 without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), we
17 review the IJ’s decision as the final agency determination.
18 See Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008).
19 We review the agency’s factual findings, including adverse
20 credibility determinations, under the substantial evidence
21 standard. See 8 U.S.C. § 1252(b)(4)(B); see also Corovic v.
22 Mukasey, 519 F.3d 90, 95 (2d Cir. 2008).
2
1 An IJ’s adverse credibility determination must be “based
2 on specific, cogent reasons bearing a legitimate nexus to
3 the determination.” Belortaja v. Gonzales, 484 F.3d 619,
4 626 (2d Cir. 2007). The agency may properly base an adverse
5 credibility determination on inconsistencies that “to the
6 heart” of the applicant’s claim for relief. See Xu Duan
7 Dong v. Ashcroft, 406 F.3d 110, 112 (2d Cir. 2005) (quoting
8 Ramsameachire v. Ashcroft, 357 F.3d 169, 182 (2d Cir.
9 2008)).
10 Here, the IJ primarily based the adverse credibility
11 finding on two inconsistencies: (1) the inconsistency
12 between Djigo’s testimony that he was beaten and detained in
13 1991 and his concession to testifying at an earlier hearing
14 that the incident occurred in 1989, as was also alleged in
15 his asylum application; and (2) the inconsistency between
16 Djigo’s claim that he was beaten and detained for his
17 membership in the African Liberation Forces of Mauritania
18 (FLAM), and his admission before the IJ that he was not a
19 member of FLAM. 2 The IJ’s findings had a “legitimate nexus”
2
Djigo challenges the IJ’s adverse credibility
finding in his brief to this Court, but did not do so
before the BIA. We nonetheless address the adverse
credibility determination because the government does not
argue that the issue is unexhausted. See Lin Zhong v.
U.S. Dep't of Justice, 461 F.3d 101, 119-20 (2d Cir. 2006)
(holding that exhaustion of issues is waived if not raised
by the government).
3
1 to Djigo’s claim for relief. Belortaja, 484 F.3d at 626.
2 The IJ did not err in finding that discrepancies in the
3 record regarding Djigo’s membership in FLAM and the dates of
4 the sole alleged incident of persecution were central to his
5 claim. See Xu Duan Dong, 406 F.3d at 112. Although Djigo
6 explained that the 1989 date was a mistake for which the
7 preparer of the asylum application was responsible, the IJ
8 acted reasonably in rejecting Djigo’s explanations. See
9 Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005).
10 Because the only evidence of a threat to Djigo’s life or
11 freedom depended upon his credibility, his failure to
12 exhaust precludes success on his claims for asylum,
13 withholding of removal, and CAT relief where all three
14 claims were based on the same factual predicate. See Paul
15 v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
16 For the foregoing reasons, the petition for review is
17 DENIED.
18
19
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
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24
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