Bah v. Holder

10-4159-ag
Bah v. Holder
BIA
Bukszpan, IJ
A099 928 088
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 28th day of February, two thousand eleven.
5
6 PRESENT:
7 PETER W. HALL,
8 DEBRA ANN LIVINGSTON,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 MAMADOU ALIMOU BAH,
14 Petitioner,
15
16 v. 10-4159-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Gary J. Yerman, New York,
24 New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Daniel E. Goldman, Senior
28 Litigation Counsel; Jonathan
29 Robbins, 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 Petitioner Mamadou Alimou Bah, a native and citizen of
6 Guinea, seeks review of a September 20, 2010, order of the
7 BIA, affirming the December 1, 2008, decision of Immigration
8 Judge (“IJ”) Joanna M. Bukszpan, which denied his
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Mamadou
11 Alimou Bah, No. A099 928 088 (B.I.A. Sept. 20, 2010), aff’g
12 No. A099 928 088 (Immig. Ct. N.Y.C. Dec. 1, 2008). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the decisions of both the BIA and the IJ. See Xiao Xing Ni
17 v. Gonzales, 494 F.3d 260, 262 (2d Cir. 2007). The
18 applicable standards of review are well-established. See 8
19 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d
20 162, 165-66 (2d Cir. 2008).
21 For applications like this one, governed by the REAL ID
22 Act of 2005, the agency may, considering the totality of the
23 circumstances, base a credibility finding on an asylum
2
1 applicant’s demeanor, the plausibility of his account, and
2 inconsistencies in his statements, without regard to whether
3 any inconsistencies, inaccuracies, or falsehoods go “to the
4 heart of the applicant’s claim.” 8 U.S.C.
5 § 1158(b)(1)(B)(iii); Matter of J-Y-C-, 24 I. & N. Dec. 260,
6 265 (BIA 2007). Analyzed under the REAL ID Act, the
7 agency’s adverse credibility determination is supported by
8 substantial evidence.
9 In finding Bah to be incredible, the agency reasonably
10 determined that aspects of his testimony were implausible –
11 such as his contention that he lied about his alleged
12 imprisonment from February through May 2006 by telling his
13 employer, the Peace Corps, that he was on vacation and that,
14 when he returned to work, he requested and was granted
15 permission to take another vacation shortly thereafter. See
16 Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2007)
17 (holding that where the IJ’s findings are “tethered to
18 record evidence, and there is nothing else in the record
19 from which a firm conviction of error could properly be
20 derived” the Court will not disturb the inherent
21 implausibility finding).
22
3
1 Although Bah argues that the agency failed to address
2 his explanations for a medical record he submitted, dated
3 during the time of his imprisonment, given his varying and
4 inconsistent explanations regarding this record, the agency
5 reasonably found that the document supported an adverse
6 credibility determination. See Majidi v. Gonzales, 430 F.3d
7 77, 80-81 (2d Cir. 2005) (finding that the agency need not
8 credit an applicant’s explanations for inconsistent
9 testimony unless those explanations would compel a
10 reasonable fact-finder to do so). It is true, as Bah points
11 out, that neither the IJ nor the BIA explicitly evaluated
12 his explanations for the medical record’s date. However,
13 “where it is apparent from the record that consideration was
14 given to an applicant’s testimony . . . it is not necessary
15 for the IJ to recite any particular verbal formula.”
16 Pavlova v. INS, 441 F.3d 82, 89 (2d Cir. 2006). Here, the
17 IJ noted Bah’s explanations in his oral decision, thereby
18 demonstrating his consideration of them. Cf. Contreras-
19 Salinas v. Holder, 585 F.3d 710, 714-15 (2d Cir. 2009)
20 (finding an IJ’s decision adequate where the IJ did not
21 “explicitly mention[]” certain evidence but “did note that
22 ‘in the record are some documents that the respondent
4
1 provided’ and that he ‘considered the evidence in the
2 entirety’” (alterations omitted)).
3 In finding Bah to be incredible, the agency also relied
4 in part on a discrepancy between his visa application and
5 his statements during a 2007 asylum interview regarding his
6 marital status. See 8 U.S.C. § 1158(b)(1)(B)(iii)
7 (providing that an adverse credibility determination may be
8 based on “the consistency between the applicant’s . . .
9 written and oral statements (whenever made and whether or
10 not under oath, and considering the circumstances under
11 which the statements were made)”); Diallo v. Gonzales, 445
12 F.3d 624, 632 (2d Cir. 2006) (finding adverse credibility
13 determination may be supported by record of asylum interview
14 if it contains a “meaningful, clear, and reliable summary of
15 the statements made by [the applicant] at the interview”)
16 (internal quotation mark omitted). Bah was questioned about
17 this inconsistency during the proceeding before the IJ,
18 although the transcript of this part of the proceeding has
19 not been included in the administrative record. Remand on
20 this basis is not required, however, as even assuming that a
21 reasonable factfinder would be compelled to accept any
22 explanation for this discrepancy Bah may have proffered, the
23 agency's adverse credibility determination was also based on
5
1 other significant grounds. See Singh v. BIA, 438 F.3d 145,
2 149-50 (2d Cir. 2006) (finding remand would be futile where,
3 although adverse credibility determination was based on two
4 erroneous grounds, the Court could “confidently predict that
5 the IJ would render the same decision in the absence of the
6 errors” because the determination was supported by numerous
7 other grounds) (internal quotation marks omitted).
8 Finally, although Bah challenges the IJ’s finding that
9 his corroborating documents were entitled to little weight
10 because they were not notarized at an embassy, the BIA did
11 not rely on this ground in dismissing his appeal and, as
12 discussed above, the adverse credibility finding is
13 supported on other bases – Bah's implausible testimony that
14 his employer would permit him to take a vacation to America
15 shortly after his more than two month absence from work
16 which Bah also told his employer was a “vacation,” as well
17 as his submission of a medical record dated during the time
18 of his supposed imprisonment. Given these inconsistencies,
19 substantial evidence supports the adverse credibility
20 determination, and the agency did not err in denying Bah’s
21 applications for asylum, withholding of removal, and CAT
22 relief, as those claims were all based on the same factual
23 predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
24 2006).
6
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
12
7