Filed: May 15, 2013
Latest Update: Mar. 28, 2017
Summary: 11-3580 Diallo v. Holder BIA Ferris, IJ A095 148 481 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
Summary: 11-3580 Diallo v. Holder BIA Ferris, IJ A095 148 481 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 NOT..
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11-3580
Diallo v. Holder
BIA
Ferris, IJ
A095 148 481
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 15th day of May, two thousand thirteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 ROBERT A. KATZMANN,
9 BARRINGTON D. PARKER,
10 Circuit Judges.
11 _______________________________________
12
13 MOUCTAR DABY DIALLO, AKA FERDINAND
14 W AUGUSTE,
15 Petitioner,
16
17 v. 11-3580
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Nita Dobroshi, The Law Offices of
25 Spar & Bernstein, P.C., New York,
26 New York.
27
28 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
29 Attorney General; John S. Hogan,
1 Senior Litigation Counsel; David H.
2 Wetmore, Trial Attorney, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Mouctar Daby Diallo, a native and citizen of
12 Guinea, seeks review of an August 11, 2011, decision of the
13 BIA affirming the November 30, 2009, decision of Immigration
14 Judge (“IJ”) Noel Ferris, denying his application for
15 asylum, withholding of removal, and relief under the
16 Convention Against Torture (“CAT”). In re Mouctar Daby
17 Diallo a.k.a. Ferdinand W. Auguste, No. A095 148 481 (B.I.A.
18 Aug. 11, 2011), aff’g No. A095 148 481 (Immig. Ct. N.Y. City
19 Nov. 30, 2009). We assume the parties’ familiarity with the
20 underlying facts and procedural history in this case.
21 We have reviewed both the IJ’s and the BIA’s opinions
22 “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d
23 233, 237 (2d Cir. 2008). The applicable standards of review
24 are well-established. See 8 U.S.C. § 1252(b)(4)(B); see
25 also Yun-Zui Guan v. Gonzales,
432 F.3d 391, 394 (2d Cir.
2
1 2005). For asylum applications submitted prior to the
2 passage of the REAL ID Act, such as Diallo’s application,
3 any adverse credibility determination must be based on
4 “specific, cogent reasons” that “bear a legitimate nexus” to
5 the finding, and any discrepancy must be “substantial” when
6 measured against the record as a whole. See Secaida-Rosales
7 v. INS, 331 F.3d 297, 307 (2d Cir. 2003), superseded by the
8 REAL ID Act as recognized in Xiu Xia Lin v. Mukasey, 534
9 F.3d 162, 163-64 (2d Cir. 2008). The agency’s adverse
10 credibility determination is supported by substantial
11 evidence.
12 In finding Diallo not credible, the IJ relied in part
13 on Diallo’s demeanor, reasonably finding his testimony non-
14 responsive and often incoherent. See Majidi v. Gonzales,
15
430 F.3d 77, 81 n.1 (2d Cir. 2005). The IJ’s demeanor
16 finding was further supported by specific examples of
17 contradictory testimony and inconsistent record evidence.
18 See Li Hua Lin v. U.S. Dep’t of Justice,
453 F.3d 99, 109
19 (2d Cir. 2006) (“We can be still more confident in our
20 review of observations about an applicant’s demeanor where,
21 as here, they are supported by specific examples of
22 inconsistent testimony.”). Indeed, the IJ reasonably found
3
1 discrepancies between Diallo’s testimony regarding whether
2 he was arrested before or after an election in Guinea, and
3 inconsistencies between his original and amended asylum
4 applications and his testimony regarding where his wife
5 lived after fleeing their country. See Zhou Yun Zhang v.
6 INS, 386 F.3d 66, 74 (2d Cir. 2004), overruled in part on
7 other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 94
8 F.3d 296, 305 (2d Cir. 2007). Diallo failed to provide a
9 compelling explanation for these inconsistencies. See
10 Majidi, 430 F.3d at 80-81.
11 In finding Diallo not credible, the agency also
12 reasonably relied on his submission of a Guinean National
13 Identity Card, which, even if authentic, was determined to
14 have been altered as to the information included on the
15 card, including the name of the bearer. See Siewe v.
16 Gonzales,
480 F.3d 160, 170 (2d Cir. 2007) (relying on the
17 doctrine of falsus in uno, falsus in omnibus); see also
18 Borovikova v. U.S. Dep’t of Justice,
435 F.3d 151, 157-58
19 (2d Cir. 2006) (concluding that the submission of a
20 fraudulent document in support of an asylum application
21 alone may constitute substantial evidence to support an
22 adverse credibility finding). Having questioned Diallo’s
23 credibility, Diallo’s failure to provide certain
4
1 corroborating evidence was reasonably considered by the
2 agency to negatively reflect on his credibility. See Biao
3 Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).
4 Ultimately, the agency’s adverse credibility determination
5 was supported by substantial evidence and provided an
6 adequate basis of denying Diallo’s application for asylum,
7 withholding of removal, and CAT relief because those claims
8 were based on the same factual predicate. See Paul v.
9 Gonzales,
444 F.3d 148, 156 (2d Cir. 2006).
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, any stay of
12 removal that the Court previously granted in this petition
13 is VACATED, and any pending motion for a stay of removal in
14 this petition is DISMISSED as moot. Any pending request for
15 oral argument in this petition is DENIED in accordance with
16 Federal Rule of Appellate Procedure 34(a)(2), and Second
17 Circuit Local Rule 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
5
