Barre v. Holder

10-2785-ag BIA
Barre v. Holder Montante, IJ
A099 656 575/576
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 for
2 the Second Circuit, held at the Daniel Patrick Moynihan United
3 States Courthouse, 500 Pearl Street, in the City of New York, on
4 the 17th day of April, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 ROSEMARY S. POOLER,
10 DEBRA ANN LIVINGSTON,
11 Circuit Judges.
12 _______________________________________
13
14 SEINAB ABDI BARRE, ABDIWALI
15 SHEIKH ABDULLAHI,
16
17 Petitioners,
18
19 v. 10-2785-ag
20 NAC
21 ERIC H. HOLDER, JR., UNITED STATES
22 ATTORNEY GENERAL,
23
24 Respondent.
25 _______________________________________
26
27 FOR PETITIONER: Carlos E. Estrada, Boston,
28 Massachusetts.
29
30
31
1 FOR RESPONDENT: Tony West, Assistant Attorney General;
2 Allen W. Hausman, Senior Litigation
3 Counsel; Kevin J. Conway, Attorney,
4 Office of Immigration Litigation, United
5 States Department of Justice,
6 Washington, D.C.
7
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED, that the petition for review is
11 DENIED.
12 Seinab Abdi Barre and Abdiwali Sheikh Abdullahi, natives and
13 citizens of Somalia, seek review of a June 15, 2010, decision of
14 the BIA affirming the July 1, 2008, decision of Immigration Judge
15 (“IJ”) Philip J. Montante, Jr., which denied Seinab Abdi Barre’s
16 application for asylum and withholding of removal, on which
17 Abdiwali Sheikh Abdullahi was named as a derivative beneficiary.
18 In re Seinab Abdi Barre, Abdiwali Sheikh Abdullahi, Nos. A099 656
19 575/576 (B.I.A. June 15, 2010), aff’g Nos. A099 656 575/576
20 (Immig. Ct. Buffalo, NY July 1, 2008). We assume the parties’
21 familiarity with the underlying facts and procedural history in
22 this case.
23 Under the circumstances of this case, we have reviewed the
24 IJ’s decision as modified by the BIA decision. See Xue Hong Yang
25 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The
26 applicable standards of review are well-established. See 8
27 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
28 (2d Cir. 2009).
2
1 For asylum applications governed by the amendments made to
2 the Immigration and Nationality Act (“INA”) by the REAL ID Act of
3 2005, the agency may, considering the totality of the
4 circumstances, base a credibility finding on an asylum
5 applicant’s demeanor, the plausibility of his or her account, and
6 inconsistencies in his or her statements, without regard to
7 whether they go “to the heart of the applicant’s claim.” 8
8 U.S.C. § 1158(b)(1)(B)(iii). Under the substantial evidence
9 standard, we treat adverse credibility determinations as
10 “conclusive unless any reasonable adjudicator would be compelled
11 to conclude to the contrary” and will “defer . . . to an IJ’s
12 credibility determination unless, from the totality of the
13 circumstances, it is plain that no reasonable fact-finder could
14 make such an adverse credibility ruling.” 8 U.S.C.
15 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d
16 Cir. 2008); see also Shi Jie Ge v. Holder, 588 F.3d 90, 93-94 (2d
17 Cir. 2009). In this case, the IJ reasonably based his adverse
18 credibility determination on the omissions and discrepancies in
19 Barre’s asylum application and her testimony.
20 A comparison of Barre’s asylum application and her testimony
21 shows discrepancies as to when her brothers and husband were
22 killed; an omission in her testimony that the Somalian government
23 had briefly detained her brother; and an omission that he had
24 been beaten by officers demanding moneys to the point that he
3
1 needed medical attention upon release. In finding Barre not
2 credible, the IJ pointed to these omissions and inconsistencies,
3 finding that the “testimony was conflicting and inconsistent or
4 contained a material omission on one or more occasions.” The
5 BIA, in turn, noted that the IJ “made an adverse credibility
6 finding based upon material and significant inconsistencies
7 between [Barre’s] testimony and her asylum application. . . .
8 regarding when her husband and brothers died, and that she failed
9 to testify about certain details which were included in her
10 asylum application” and affirmed the IJ’s adverse credibility
11 determination on those bases. The agency’s findings regarding
12 inconsistencies and omissions in the record are supported by
13 substantial evidence, and those inconsistencies and omissions
14 were proper grounds for its adverse credibility finding. See 8
15 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.
16 While the agency decisions in this case are not without flaw
17 -- we note, in particular, that the IJ neglected to put Barre on
18 notice as to the discrepancies upon which he relied in finding
19 her not credible -- remand here would be futile because it is
20 clear “that the same decision would have been reached in the
21 absence of the errors.” See Cao He Lin v. U.S Dep’t of Justice,
22 428 F.3d 391, 402 (2d Cir. 2005); see also Xiao Ji Chen v. U.S.
23 Dep’t of Justice, 471 F.3d 315, 338 (2d Cir. 2006) (“[A]n error
24 does not require a remand if the remand would be pointless
4
1 because it is clear that the agency would adhere to its prior
2 decision in the absence of error.”). Ultimately, substantial
3 evidence supports the agency’s adverse credibility determination,
4 and, accordingly, we will defer to its finding. See 8 U.S.C.
5 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. Because the
6 adverse credibility determination is dispositive of Barre’s
7 claim, we do not reach the agency’s finding regarding future
8 persecution on account of membership in a particular social
9 group.
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, the pending motion for
12 a stay of removal in this petition is DISMISSED as moot.
13
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
16
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