Moore v. Holder

11-932-ag
Moore v. Holder
BIA
Montate, IJ
A029 749 3343
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 23rd day of February, two thousand twelve.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 DEBRA ANN LIVINGSTON,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 JOSEPH TAMBA MOORE,
14 Petitioner,
15
16 v. 11-932-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Joseph Tamba Moore, pro se,
24 Rochester, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Francis W. Fraser, Senior
28 Litigation Counsel; Linda Y. Cheng,
29 Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
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
4 is DENIED.
5 Joseph Tamba Moore, a native and citizen of Liberia,
6 seeks review of a February 10, 2011, order of the BIA
7 affirming the April 21, 2009, decision of an Immigration
8 Judge (“IJ”), which denied his applications for asylum and
9 withholding of removal. In re Moore, No. A029 749 343
10 (B.I.A. Feb. 10, 2011), aff’g No. A029 749 343 (Immig. Ct.
11 Buffalo Apr. 21, 2009). We assume the parties’ familiarity
12 with the underlying facts and procedural history in this
13 case.
14 Under the circumstances of this case, we have reviewed
15 the IJ’s decision as modified by the BIA, considering all
16 grounds for the IJ’s adverse credibility determination, see
17 Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005),
18 but not the alternate findings that the BIA did not review,
19 see Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
20 522 (2d Cir. 2005). The applicable standards of review are
21 well-established. See 8 U.S.C. § 1252(b)(4)(B); see also
22 Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008). We deny
23 the petition for review, as the agency’s adverse credibility
24 determination is supported by substantial evidence.
2
1 In finding Moore not credible, the agency reasonably
2 relied on inconsistencies between his hearing testimony and
3 his written asylum applications, and on lack of detail in
4 his hearing testimony. See Secaida-Rosales v. INS, 331 F.3d
5 297, 308-09 (2d Cir. 2003).* For example, although Moore
6 testified before the IJ that rebels kidnapped him in 1987
7 and killed his brother and daughter in 1990, he made no such
8 claims in his written applications. Moreover, he did not
9 testify at the merits hearing that he feared persecution
10 because of his tribal affiliation, even though that was the
11 primary argument in his initial written application.
12 Because these inconsistencies go to the heart of Moore’s
13 persecution claims, and were “substantial” when measured
14 against the record as a whole, the agency did not err in
15 relying on the inconsistencies to find him not credible.
16 See Secaida-Rosales, 331 F.3d at 308-09. Furthermore, Moore
17 testified at his hearing that his family members were
18 threatened, but he was unable to provide detail, even when
*
In Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d
Cir. 2008), we recognized that the Real ID Act abrogated
in part the holding in Secaida-Rosales for cases filed
after May 11, 2005, the effective date of the Act. Id.Because Moore’s initial application was filed before this
date, Secaida-Rosales remains good law. See Dong Zhong
Zheng v. Mukasey, 552 F.3d 277, 287 n.6 (2d Cir. 2009).
3
1 asked. See Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 152 (2d
2 Cir. 2003) (“spare” testimony can support adverse
3 credibility finding where attempt was made to elicit
4 detail).
5 Although Moore broadly argues that this Court should
6 excuse these inconsistencies and omissions because of his
7 stroke, he has provided no evidence that he had a stroke,
8 let alone evidence of when the stroke occurred or how it
9 affects his memory. Therefore, the IJ was not compelled to
10 accept the explanation, see Majidi v. Gonzales, 430 F.3d 77,
11 81 (2d Cir. 2005), and Moore has not negated the substantial
12 evidence that supports the IJ’s adverse credibility
13 determination, see Diallo v. BIA, 548 F.3d 232, 234 (2d Cir.
14 2008).
15 Additionally, the IJ did not err in refusing to admit
16 the untimely-filed copy of Moore’s daughter’s death
17 certificate into evidence. “[A]n IJ has broad discretion to
18 set and extend filing deadlines pursuant to 8 C.F.R.
19 § 1003.31.” Dedji v. Mukasey, 525 F.3d 187, 191 (2d Cir.
20 2008). Moore, who was represented by counsel in the
21 proceedings before the IJ, has never argued that he was
22 unaware of the IJ’s deadline for the filing of exhibits.
23 Moreover, Moore did not provide good cause to excuse the
4
1 untimely filing, since he admittedly requested the document
2 only one month before the merits hearing, even though he
3 received the Notice to Appear in 2007, and has conceded that
4 he knew it would be difficult to obtain documents from
5 Liberia.
6 Since the only evidence of a threat to Moore’s life or
7 freedom depended upon his credibility, the adverse
8 credibility determination in this case necessarily precludes
9 success on both his claims for asylum and withholding of
10 removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
11 2006).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of
14 removal that the Court previously granted in this petition
15 is VACATED, and any pending motion for a stay of removal in
16 this petition is DISMISSED as moot. Any pending request for
17 oral argument in this petition is DENIED in accordance with
18 Federal Rule of Appellate Procedure 34(a)(2), and Second
19 Circuit Local Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
23
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