Abdoul Diallo v. Jefferson B. Sessions, III

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 16-3792
___________________________
Abdoul Gadiri Diallo
lllllllllllllllllllllPetitioner
v.
Jefferson B. Sessions, III, Attorney General of the United States
lllllllllllllllllllllRespondent
____________
Petition for Review of an Order of the
Board of Immigration Appeals
____________
Submitted: September 6, 2017
Filed: September 12, 2017
[Unpublished]
____________
Before COLLOTON, BOWMAN, and BENTON, Circuit Judges.
____________
PER CURIAM.
Abdoul Gadiri Diallo, a citizen of Guinea, petitions for review of an order of
the Board of Immigration Appeals (BIA) dismissing his appeal from the decision of
an immigration judge (IJ) that denied him asylum, withholding of removal, and relief
under the Convention Against Torture (CAT) based on an adverse credibility finding.
The BIA found that the IJ’s credibility determination was not erroneous because it
was based on specific, cogent reasons. The BIA identified inconsistencies and
discrepancies among Diallo’s interview statements, asylum application, testimony,
and documentary evidence that Diallo did not satisfactorily explain. In his petition
for review, as relevant to those issues properly before us,1 Diallo challenges the IJ’s
credibility determination and contends that the government’s use of a Border Patrol
agent’s report without producing the agent for questioning violated his due process
rights.
We conclude that Diallo’s challenge to the adverse credibility determination
fails because the IJ’s finding was sufficiently supported, as explained by the BIA. No
“reasonable adjudicator would be compelled to conclude to the contrary.” Fesehaye
v. Holder, 607 F.3d 523, 526 (8th Cir. 2010) (quoting 8 U.S.C. § 1252(b)(4));
Kondakova v. Ashcroft, 383 F.3d 792, 797 (8th Cir. 2004) (determining that an IJ’s
credibility finding was supported by “specific and cogent reasons” where, inter alia,
the alien’s testimony and asylum application were inconsistent), cert. denied, 543
U.S. 1053 (2005); see also Chakhov v. Lynch, 837 F.3d 843, 846 (8th Cir. 2016)
(concluding that an IJ may base a credibility determination “on the demeanor, candor,
or responsiveness of the applicant,” among other factors (quoting 8 U.S.C.
§ 1158(b)(1)(B)(iii))). We also conclude that the Border Patrol credible-fear report
was sufficiently probative to be considered, as it addressed Diallo’s bases for his
claimed fear of return. Further, the admission of the report was not fundamentally
unfair because Diallo’s statements were made under oath, the report was produced by
the agent during the ordinary course of his duties, and the report was made
contemporaneously with Diallo’s interpreter-assisted interview. See Kim v. Holder,
560 F.3d 833, 836 (8th Cir.) (explaining criteria for the admission of hearsay
evidence in immigration proceedings), cert. denied, 558 U.S. 945 (2009).
1
See Agha v. Holder, 743 F.3d 609, 616 (8th Cir. 2014) (discussing
administrative exhaustion requirement); Fofanah v. Gonzales, 447 F.3d 1037, 1040
(8th Cir. 2006) (“Because the BIA did not consider the IJ’s alternative grounds for
denying relief, those issues are not properly before us.”).
-2-
Because Diallo’s withholding claim relied on the same discredited evidence as
his claim for asylum, it failed as well. See Nadeem v. Holder, 599 F.3d 869, 873 (8th
Cir. 2010). “Although an adverse credibility determination is not necessarily
determinative of [a CAT] claim, an immigration judge may consider an applicant’s
discounted credibility when determining whether he or she will be subject to torture.”
Id. Moreover, Diallo’s evidence of general country conditions was insufficient to
show that he would more likely than not suffer torture in Guinea. See id. at 873–74.
The petition is denied.
______________________________
-3-