Kone v. Lynch

15-618
Kone v. Lynch
BIA
Laforest, IJ
A089 252 077
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 TO 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 Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 27th day of July, two thousand sixteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 BARRINGTON D. PARKER,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 KALILOU KONE, AKA SYLLA
14 SOULEYMANE, AKA BARRY ISSA,
15 Petitioner,
16
17 v. 15-618
18 NAC
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Joshua Bardavid, New York, New York.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Nancy F.
28 Friedman, Justin R. Markel, Senior
29 Litigation Counsel, 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 is
4 DENIED.
5 Petitioner Kalilou Kone, allegedly a native and citizen of
6 the Ivory Coast, seeks review of a February 5, 2015, decision
7 of the BIA, affirming a July 11, 2013, decision of an Immigration
8 Judge (“IJ”) denying Kone’s application for asylum, withholding
9 of removal, and relief under the Convention Against Torture
10 (“CAT”). In re Kalilou Kone, No. A089 252 077 (B.I.A. Feb. 5,
11 2015), aff’g No. A089 252 077 (Immig. Ct. N.Y. City July 11,
12 2013). We assume the parties’ familiarity with the underlying
13 facts and procedural history in this case.
14 Under the circumstances of this case, we have considered
15 both the IJ’s and the BIA’s opinions “for the sake of
16 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
17 524, 528 (2d Cir. 2006). The applicable standards of review
18 are well established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin
19 v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). Substantial
20 evidence supports the agency’s determination that Kone was not
21 credible as to his claim that he was persecuted and his father
22 killed in the Ivory Coast on account of their ethnicity and
23 political opinion.
2
1 In finding him not credible, the agency reasonably relied
2 on Kone’s admission that, in addition to using a false passport
3 to enter the United States, he used a second false identity to
4 apply for work authorization with U.S. immigration authorities.
5 See Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (“[A]
6 single false document or a single instance of false testimony
7 may (if attributable to the petitioner) infect the balance of
8 the alien’s uncorroborated or unauthenticated evidence.”); see
9 also Borovikova v. U.S. Dep’t of Justice, 435 F.3d 151, 157-58
10 (2d Cir. 2006). Although there are limitations to the “maxim
11 falsus in uno, falsus in omnibus (false in one thing, false in
12 everything),” including when the false evidence or statements
13 were necessary to escape persecution, Kone’s use of a false
14 identity to secure an immigration benefit (work authorization)
15 while already safely within the United States was not so
16 excused. Siewe, 480 F.3d at 170 (quoting Lin Zhong v. U.S.
17 Dep’t of Justice, 461 F.3d 101, 123 (2d Cir. 2006)).
18 Moreover, when Kone was asked if he had applied for work
19 authorization in August 2005, he replied that he could not
20 remember. The IJ reasonably found this response suspect
21 because he should have remembered that he had claimed to have
22 been, at that time, living (and persecuted) in the Ivory Coast.
23 Cf. Xiu Xia Lin, 534 F.3d at 166 n.3 (providing that an omission
3
1 is the equivalent of an inconsistency and can support an adverse
2 credibility determination).
3 Having questioned Kone’s credibility, the agency
4 reasonably relied further on his failure to provide any evidence
5 corroborating his past persecution as needed to rehabilitate
6 his testimony or independently establish his eligibility for
7 relief. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.
8 2007). Contrary to Kone’s contention, the agency was not
9 required to make a specific finding as to the availability of
10 such evidence in light of the IJ’s adverse credibility findings.
11 See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341
12 (2d Cir. 2006).
13 Given Kone’s submission of a false application for
14 immigration benefits and his failure to corroborate his claim
15 of past persecution, the agency’s adverse credibility
16 determination is supported by substantial evidence. See
17 Siewe, 480 F.3d at 170; Biao Yang, 496 F.3d at 273. That finding
18 is dispositive of asylum, withholding of removal, and CAT relief
19 because all three claims are based on the same factual
20 predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
21 2006). Accordingly, we do not consider the agency’s
22 alternative bases for denying relief. See INS v. Bagamasbad,
23 429 U.S. 24, 25 (1976) (“As a general rule courts and agencies
4
1 are not required to make findings on issues the decision of which
2 is unnecessary to the results they reach.”).
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of removal
5 that the Court previously granted in this petition is VACATED,
6 and any pending motion for a stay of removal in this petition
7 is DISMISSED as moot. Any pending request for oral argument
8 in this petition is DENIED in accordance with Federal Rule of
9 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
10 34.1(b).
11 FOR THE COURT:
12 Catherine O=Hagan Wolfe, Clerk
5