Fofana v. Holder

11-656-ag
Fofana v. Holder
BIA
Brennan, IJ
A093 408 626
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 15th day of February, two thousand twelve.
5
6 PRESENT:
7 BARRINGTON D. PARKER,
8 RICHARD C. WESLEY,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _______________________________________
12
13 FACINET GOULY FOFANA, AKA THIAN
14 IBRAHIM,
15 Petitioner,
16
17 v. 11-656-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Bibiana C. Andrade, New York, N.Y.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Ada E. Bosque, Senior
28 Litigation Counsel, Puneet Cheema,
29 Trial Attorney, Office of
30 Immigration Litigation, Civil
31 Division, United States Department
32 of Justice, 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 Petitioner Facinet Gouly Fofana, a native of Mali and
6 citizen of Guinea, seeks review of a January 24, 2011, order
7 of the BIA affirming the January 15, 2009, decision of
8 Immigration Judge (“IJ”) Noel Ann Brennan denying his
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Fofana,
11 No. A093 408 626 (B.I.A. Jan. 24, 2011), aff’g No. A093 408
12 626 (Immig. Ct. N.Y. City Jan. 15, 2009). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case. Under the circumstances of
15 this case, we have reviewed the IJ’s decision as modified by
16 the BIA’s decision. See Yang v. U.S. Dep't of Justice, 426
17 F.3d 520, 522 (2d Cir. 2005).
18 Fofana argues that the IJ’s adverse credibility finding
19 was not supported by the inconsistencies in his testimony.
20 However, as the BIA found, and as the Government points out,
21 Fofana’s appeal to the BIA did not present any specific
22 challenges to the IJ’s adverse credibility finding.
2
1 Accordingly, we decline to consider Fofana’s challenges to
2 the adverse credibility finding because he failed to exhaust
3 the arguments by presenting them to the BIA in the first
4 instance. See Zhong v. U.S. Dep't of Justice, 480 F.3d 104,
5 122 (2d Cir. 2007) (reaffirming that this Court “may
6 consider only those issues that formed the basis for [the
7 BIA’s] decision”). Because Fofana’s requests for asylum,
8 withholding of removal, and CAT relief shared the same
9 factual basis, the agency’s finding that his testimony was
10 not credible supports the agency’s denial of all three forms
11 of relief. See Paul v. Gonzales, 444 F.3d 148, 157 (2d Cir.
12 2006).
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, any stay of
15 removal that the Court previously granted in this petition
16 is VACATED, and any pending motion for a stay of removal in
17 this petition is DISMISSED as moot. Any pending request for
18 oral argument in this petition is DENIED in accordance with
19 Federal Rule of Appellate Procedure 34(a)(2), and Second
20 Circuit Local Rule 34.1(b).
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
23
24
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