Filed: Jul. 27, 2012
Latest Update: Mar. 26, 2017
Summary: 11-3459-ag Ba v. Holder BIA Van Wyke, IJ A096 499 696 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
Summary: 11-3459-ag Ba v. Holder BIA Van Wyke, IJ A096 499 696 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 NO..
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11-3459-ag
Ba v. Holder
BIA
Van Wyke, IJ
A096 499 696
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 27th day of July, two thousand twelve.
5
6 PRESENT:
7 REENA RAGGI,
8 GERARD E. LYNCH,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 ______________________________________
12
13 HAROUNA BA, AKA CHACHA DOUCOURE,
14 Petitioner,
15
16 v. 11-3459-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23
24 FOR PETITIONER: Jamie B. Naini, Memphis, TN.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Keith I. McManus, Senior
28 Litigation Counsel; Brendan P.
29 Hogan, 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 Harouna Ba, a native and citizen of
6 Mauritania, seeks review of a July 27, 2011, order of the
7 BIA affirming the May 7, 2009, decision of Immigration Judge
8 (“IJ”) William P. Van Wyke denying his application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Harouna Ba, No.
11 A096 499 696 (B.I.A. July 27, 2011), aff’g No. A096 499 696
12 (Immig. Ct. N.Y. City May 7, 2009). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we have reviewed
16 the decision of the IJ as supplemented by the BIA. See Yan
17 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well established. See 8
19 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder,
562 F.3d 510,
20 513 (2d Cir. 2009). For asylum applications like Ba’s,
21 submitted prior to the passage of the REAL ID Act, an
22 adverse credibility determination must be based on
2
1 “specific, cogent reasons” that “bear a legitimate nexus” to
2 the finding, and any discrepancy must be “substantial” when
3 measured against the record as a whole. See Secaida-Rosales
4 v. INS, 331 F.3d 297, 307 (2d Cir. 2003), (internal
5 quotation marks omitted), superseded by statute on other
6 grounds as recognized by Xiu Xia Lin v. Mukasey,
534 F.3d
7 162, 163-64 (2d Cir. 2008); Tu Lin v. Gonzales,
446 F.3d
8 395, 400 (2d Cir. 2006). Here, substantial evidence
9 supports the agency’s adverse credibility determination.
10 The IJ reasonably found Ba’s testimony that he was a
11 Mauritanian slave not credible due to inconsistencies
12 between his identification documents and his testimony. An
13 asylum applicant bears the burden to establish his
14 nationality, or lack of nationality, see Jigme Wangchuck v.
15 DHS,
448 F.3d 524, 529 (2d Cir. 2006), and his failure to
16 establish his identity may “significantly undermine[] the
17 credibility of his request for asylum,” Matter of O-D-, 21
18 I. & N. Dec. 1079, 1082 (BIA 1998). Here, the IJ reasonably
19 declined to credit Ba’s birth certificate, which was
20 unauthenticated in any manner and contradicted the birth
21 date Ba asserted during his testimony, and Red Cross
22 documents, which indicated that Ba resided in a Senegalese
3
1 camp during years that Ba’s testimony and evidence indicated
2 he resided in the United States and Mauritania. See Xiao Ji
3 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 335 (2d Cir.
4 2006) (noting that the weight afforded to the applicant’s
5 evidence in immigration proceedings lies largely within the
6 discretion of the IJ). Despite Ba’s explanation for the
7 discrepancy between the Red Cross letter and his testimony,
8 he did not explain the discrepancy with regard to his other
9 evidence, and the IJ was thus not required to credit his
10 explanation. See Majidi v. Gonzales,
430 F.3d 77, 80 (2d
11 Cir. 2005).
12 The IJ also reasonably relied on: (1) Ba’s vague and
13 implausible testimony regarding how he became aware of his
14 parents’ death, see Jin Chen v. U.S. Dep’t of Justice, 426
15 F.3d 104, 114 (2d Cir. 2005); (2) his evasive demeanor, see
16 Tu Lin, 446 F.3d at 400-01; and (3) the cumulative effect of
17 the inconsistencies in Ba’s testimony regarding matters
18 collateral to Ba’s underlying claim, including his
19 admissions that he lied when testifying that he had not been
20 in or arrested in the United States prior to 2003 and had
21 not used another name, and his inconsistent testimony
22 regarding how he became aware of his parents’ murders, see
4
1 id. at 402. Furthermore, having questioned the credibility
2 of Ba’s testimony, the IJ reasonably required corroborating
3 evidence from his cousins who lived in the United States and
4 Canada. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
5 Cir. 2007).
6 Because the IJ’s adverse credibility determination is
7 supported by substantial evidence, the IJ did not err by
8 denying Ba’s application for asylum, withholding of removal,
9 and CAT relief as these claims were based on the same
10 factual predicate. Paul v. Gonzales,
444 F.3d 148, 156 (2d
11 Cir. 2006).
12 For the foregoing reasons, the petition for review is
13 DENIED.
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
16
17
5
