Barry v. Holder

SUMMARY ORDER

Petitioner Ibrahima Barry, a native and citizen of Mauritania, seeks review of an October 28, 2008 order of the BIA affirming the January 31, 2007 decision of Immigration Judge Javier Balasquide, denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Ibrahima Barry, No. A079 587 755 (B.I.A. Oct. 28, 2008), aff'g No. A079 587 755 (Immig. Ct. N.Y. City Jan. 31, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

When the BIA adopts the decision of the IJ and supplements the IJ’s decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see, e.g., Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). Questions of law and the application of law to undisputed fact are reviewed de novo. Salimatou Bah v. Mukasey, 529 F.3d 99, 104 (2d Cir.2008).

The agency’s adverse credibility determination is supported by substantial evidence. See Corovic, 519 F.3d at 95. The IJ identified the following five discrepancies in the record: (1) Barry stated in his asylum application that he was arrested in 1986 because of an FLAM manifest, but testified that he was arrested because he attended an FLAM rally; (2) he stated in his asylum application that both he and his brother were arrested on another occasion in 1986, but he testified that only his brother was arrested at that time; (3) he stated in his asylum application that he was arrested once in 1992 and detained for two weeks, but testified variously that he was arrested twice in 1992 and detained for one month, that he was detained for two months, and that he was detained for only two weeks; (4) he stated in his asylum application that he was arrested in 2000 because he was a member of the Popular Front party, but testified that he was arrested in 2000 because he attended an election rally and not because of his membership in the party; and (5) he submitted an ID card indicating that he became a member of the Popular Front party in 1999, but testified that he did not become a member until 2000. These were each discrepancies that went to the heart of Barry’s claim because they call into question whether Barry was politically active and whether he was persecuted on that basis. See Hongsheng Leng v. Mukasey, 528 F.3d 135, 141-42 (2d Cir.2008).

When asked to clarify the discrepancies, Barry testified that the person who prepared his asylum applications must have been confused and misunderstood. However, because Barry had the opportunity to review his application and correct any mistakes, no reasonable fact finder would be compelled to accept his explanation. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005).

Ultimately, we find no error in the IJ’s adverse credibility determination. Thus, the IJ properly denied Barry’s application for asylum, withholding of removal, and CAT relief because the only evidence of a threat to Barry’s life or freedom depended on his credibility. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005).

Finally, Barry argues that he was entitled to relief because there is a pattern and practice of persecution against blacks in Mauritania. However, because Barry did not exhaust this argument before the BIA, we decline to consider it. Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104 at 107 n. 1(b) (2d Cir.2007).

For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).