Filed: Nov. 19, 2010
Latest Update: Feb. 21, 2020
Summary: 09-5184-ag Sengott v. Holder BIA Van Wyke, IJ A098 580 851 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
Summary: 09-5184-ag Sengott v. Holder BIA Van Wyke, IJ A098 580 851 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 T..
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09-5184-ag
Sengott v. Holder
BIA
Van Wyke, IJ
A098 580 851
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 19 th day of November, two thousand ten.
5
6 PRESENT:
7 RALPH K. WINTER,
8 JOSÉ A. CABRANES,
9 DENNY CHIN,
10 Circuit Judges.
11 ______________________________________
12
13 MOCTAR BAIDY SENGOTT,
14 Petitioner,
15
16 v. 09-5184-ag
17 NAC
18 ERIC H. HOLDER, JR., U.S. ATTORNEY
19 GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Law Offices of Malick A. Diop,
24 Bronx, New York
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Emily Anne Radford,
28 Assistant Director, Nehal H. Kamani,
29 Trial Attorney, Office of
1 Immigration Litigation, U.S.
2 Department of Justice, Washington
3 D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED in part and DISMISSED in part.
9 Petitioner Moctar Baidy Sengott, an alleged native and
10 citizen of Mauritania, seeks review of the November 17,
11 2009, decision of the BIA affirming the January 14, 2008,
12 decision of Immigration Judge (“IJ”) William P. Van Wyke
13 pretermitting his application for asylum, and denying his
14 applications for withholding of removal and relief under the
15 Convention Against Torture (“CAT”). In re Moctar Baidy
16 Sengott, No. A098 580 851 (B.I.A. Nov. 17, 2009), aff’g No.
17 A098 580 851 (Immig. Ct. N.Y. City Jan. 14, 2008). We
18 assume the parties’ familiarity with the underlying facts
19 and procedural history in this case.
20 Under the circumstances of this case, we review both
21 the IJ’s and the BIA’s decisions. See Zaman v. Mukasey, 514
22 F.3d 233, 237 (2d Cir. 2008). The applicable standards of
23 review are well-established. See 8 U.S.C. § 1252(b)(4)(B);
24 Yanqin Weng v. Holder,
562 F.3d 510, 513 (2d Cir. 2009). We
2
1 review only the agency’s denial of Sengott’s applications
2 for withholding of removal and CAT relief because he waives
3 any challenge to the agency’s pretermission of his asylum
4 application as untimely. See Yueqing Zhang v. Gonzales, 426
5 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).
6 With respect to Sengott’s application for withholding
7 of removal, substantial evidence supports the IJ’s adverse
8 credibility determination. While Sengott claims that the
9 agency improperly relied on minor inconsistencies, the
10 agency reasonably found that Sengott’s contradictory
11 testimony and failure, though given multiple opportunities,
12 to establish his location during the six years after he and
13 his family purportedly were forcibly deported from
14 Mauritania constituted substantial discrepancies going to
15 the heart of Sengott’s claim. See Secaida-Rosales v. INS,
16
331 F.3d 297, 307 (2d Cir. 2003). Moreover, the agency did
17 not err in concluding that these discrepancies in
18 conjunction with other inconsistencies such as those related
19 to whether Sengott’s brother’s arm was broken, whether
20 soldiers accused Sengott of not being Mauritanian, and
21 whether his family was beaten and whipped by a rival ethnic
22 group, cumulatively supported an adverse credibility
3
1 determination. See Tu Lin v. Gonzales, 446 F.3d 395, 402
2 (2d Cir. 2006) (emphasizing that “even where an IJ relies on
3 discrepancies or lacunae that, if taken separately, concern
4 matters collateral or ancillary to the claim, ... the
5 cumulative effect may nevertheless be deemed consequential
6 by the fact-finder”).
7 Accordingly, because the agency’s adverse credibility
8 determination was supported by substantial evidence, it did
9 not err in denying Sengott’s application for withholding of
10 removal. See
id. at 402-03. Further, the agency did not
11 err in finding that Sengott failed to credibly establish his
12 eligibility for protection under the CAT because that claim
13 was based on the same factual predicate as his claim for
14 withholding of removal. See Xue Hong Yang v. U.S. Dep’t of
15 Justice,
426 F.3d 520, 523 (2d Cir. 2005).
16 Finally, we lack jurisdiction to consider Sengott’s
17 ineffective assistance of counsel claim because it was not
18 presented to the BIA, and we dismiss the petition for review
19 to that extent. See 8 U.S.C. § 1252(d)(1).
20 For the foregoing reasons, the petition for review is
21 DENIED in part and DISMISSED in part. As we have completed
22 our review, any stay of removal that the Court previously
4
1 granted in this petition is VACATED, and any pending motion
2 for a stay of removal in this petition is DISMISSED as moot.
3 Any pending request for oral argument in this petition is
4 DENIED in accordance with Federal Rule of Appellate
5 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
5
