Filed: Apr. 26, 2017
Latest Update: Mar. 03, 2020
Summary: 15-3326 Ndongo v. Sessions BIA Nelson, IJ A087 779 442 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
Summary: 15-3326 Ndongo v. Sessions BIA Nelson, IJ A087 779 442 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 N..
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15-3326
Ndongo v. Sessions
BIA
Nelson, IJ
A087 779 442
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 26th day of April, two thousand seventeen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 BARRINGTON D. PARKER,
10 DENNY CHIN,
11 Circuit Judges.
12 _____________________________________
13
14 CHEIKHNA ABDOULAYE NDONGO,
15 Petitioner,
16
17 v. 15-3326
18 NAC
19 JEFFERSON B. SESSIONS III, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Andy Wong, Washington, D.C.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Jeffrey
28 R. Leist, Senior Litigation Counsel;
29 David Schor, Trial Attorney, Office
30 of Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
33
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 Cheikhna Abdoulaye Ndongo, a native and citizen
6 of Mauritania, seeks review of an October 1, 2015, decision of
7 the BIA, affirming a May 1, 2014, decision of an Immigration
8 Judge (“IJ”) denying Ndongo’s application for asylum,
9 withholding of removal, and relief under the Convention Against
10 Torture (“CAT”). In re Cheikhna Abdoulaye Ndongo, No. A087 799
11 442 (B.I.A. Oct. 1, 2015), aff’g No. A087 799 442 (Immig. Ct.
12 N.Y. City May 1, 2014). We assume the parties’ familiarity with
13 the underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed both
15 the IJ’s and the BIA’s opinions “for the sake of completeness.”
16 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
17 2006). The applicable standards of review are well
18 established. See 8 U.S.C. § 1252(b); Xiu Xia Lin v. Mukasey,
19
534 F.3d 162, 165-66 (2d Cir. 2008).
20 For asylum applications like Ndongo’s, governed by the REAL
21 ID Act, the agency may, “[c]onsidering the totality of the
22 circumstances,” base a credibility finding on “the inherent
23 plausibility” of the applicant’s account and on inconsistencies
2
1 in an applicant’s testimony and evidence, “without regard to
2 whether” those inconsistencies “go to the heart of the
3 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We
4 defer . . . to an IJ’s credibility determination unless, from
5 the totality of the circumstances, it is plain that no
6 reasonable fact-finder could make such an adverse credibility
7 ruling.” Xiu Xia Lin, 534 F.3d at 167. “A petitioner must do
8 more than offer a plausible explanation for his inconsistent
9 statements to secure relief; he must demonstrate that a
10 reasonable fact-finder would be compelled to credit his
11 testimony.” Majidi v. Gonzales,
430 F.3d 77, 80 (2d Cir. 2005)
12 (internal quotation marks omitted).
13 The threshold question is whether there is a credibility
14 determination to review here. An IJ must “decide explicitly”
15 whether an applicant’s testimony is credible. Diallo v. INS,
16
232 F.3d 279, 290 (2d Cir. 2000). We conclude that there is
17 a sufficiently explicit determination in this case. The IJ
18 cited the REAL ID Act, noted the “serious inconsistencies” among
19 Ndongo’s statements and evidence, and concluded that, “[b]ased
20 on the inconsistencies,” Ndongo “had failed to meet the burden
21 of proof of establishing past persecution or a well-founded fear
22 of persecution.” Special App. 10, 12; see also Zaman v.
23 Mukasey,
514 F.3d 233, 237-38 (2d Cir. 2008).
3
1 Turning to the denial of relief, the agency’s adverse
2 credibility determination is supported by substantial
3 evidence. The essence of Ndongo’s claim is that he was born
4 into slavery in Mauritania and that he fears that his master,
5 who exercised strict control over his movements, will harm him
6 and his family. As discussed below, the inconsistencies call
7 into question the veracity of Ndongo’s claim.
8 First, the agency reasonably relied on inconsistencies
9 concerning Ndongo’s wife’s place of birth and her current
10 location, as those inconsistencies called into question whether
11 Ndongo’s wife and, thus, Ndongo, was a slave. See 8 U.S.C.
12 § 1158(b)(1)(B)(iii). Ndongo testified that his wife was born
13 into slavery in Mauritania under the same slave master he was.
14 But his application reports that his wife was born in Senegal.
15 The IJ was not compelled to accept Ndongo’s explanation that
16 he was confused. See Majidi, 430 F.3d at 80. And the
17 inconsistency was compounded by another concerning his wife’s
18 current location: Ndongo’s application reported that his wife
19 lived in Senegal, but he testified that she lived in Mauritania.
20 The IJ also reasonably found Ndongo’s testimony concerning
21 his wife implausible. See Yan v. Mukasey,
509 F.3d 63, 66 (2d
22 Cir. 2007). In addition to being inconsistent, Ndongo’s
23 ultimate testimony that his wife was born in Senegal but went
4
1 to Mauritania at age 20 raised doubt as to how she came to be
2 a slave in Mauritania. Ndongo’s explanation—that he and his
3 wife had not met before their marriage—failed to clarify this
4 issue. See Majidi, 430 F.3d at 80. Moreover, Ndongo’s
5 application lists his wife’s ethnicity as “Bidane,” which, as
6 the IJ noted, is generally a group that holds slaves in
7 Mauritania, not a group that is subject to slavery there.
8 Second, the IJ also reasonably relied on an inconsistency
9 concerning Ndongo’s ability to marry. In a supplemental
10 affidavit to his asylum application, Ndongo stated that, as a
11 slave, he was not permitted to marry. Ndongo argues that he
12 meant he was not permitted to marry absent his master’s consent.
13 While a plausible explanation, Ndongo has not demonstrated that
14 a reasonable fact-finder would be compelled to accept it. See
15 id ; Chen v. U.S. Attorney General,
454 F.3d 103, 106-07 (2d
16 Cir. 2006).
17 Third, the adverse credibility determination is further
18 bolstered by inconsistencies concerning Ndongo’s escape from
19 Mauritania, Ndongo gave no explanation for his testimony that
20 a merchant named Mustafa Wood was the only person who helped
21 him escape, while his supplemental affidavit reflected that
22 Oula Bass helped him flee.
5
1 Given the inconsistencies that called Ndongo’s claim into
2 question, the agency did not err in finding that Ndongo’s lack
3 of reliable corroborating evidence was insufficient to
4 rehabilitate his testimony. See Biao Yang v. Gonzales, 496
5 F.3d 268, 273 (2d Cir. 2007). The IJ reasonably gave diminished
6 weight to letters from Ndongo’s brother and a psychologist.
7 The letter purportedly from Ndongo’s brother does not identify
8 the drafter by name, was not notarized, did not describe how
9 Ndongo escaped Mauritania, and listed an inconsistent return
10 addressee. See Matter of H-L-H- & Z-Y- Z-, 25 I. & N. Dec. 209,
11 215 (B.I.A. 2010) (agency can give little weight to document
12 drafted by interested witness not subject to cross
13 examination), rev’d on other grounds by Hui Lin Huang v. Holder,
14
677 F.3d 130 (2d Cir. 2012). And while the agency credited the
15 psychologist’s diagnosis of Posttraumatic Stress Disorder, it
16 reasonably gave diminished weight to the historical facts the
17 psychologist’s letter recited because the psychologist had no
18 independent knowledge of events. See Y.C. v. Holder,
741 F.3d
19 324, 334 (2d Cir. 2013) (“We defer to the agency’s determination
20 of the weight afforded to an alien’s documentary evidence.”).
21 Given the multiple inconsistencies, the implausible
22 testimony, and Ndongo’s lack of reliable corroboration, it
23 cannot be said “that no reasonable fact-finder could make such
6
1 an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
2 Because asylum, withholding of removal, and CAT relief were all
3 based on the same factual predicate, the adverse credibility
4 determination is dispositive. Paul v. Gonzales,
444 F.3d 148,
5 156-57 (2d Cir. 2006).
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, any stay of removal
8 that the Court previously granted in this petition is VACATED,
9 and any pending motion for a stay of removal in this petition
10 is DISMISSED as moot. Any pending request for oral argument
11 in this petition is DENIED in accordance with Federal Rule of
12 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
13 34.1(b).
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
7
