Filed: Jan. 13, 2010
Latest Update: Mar. 02, 2020
Summary: 08-4189-ag Diawara v. Holder BIA Sichel, IJ A098 363 423 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 TH
Summary: 08-4189-ag Diawara v. Holder BIA Sichel, IJ A098 363 423 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..
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08-4189-ag
Diawara v. Holder
BIA
Sichel, IJ
A098 363 423
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 13 th day of January, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 ROGER J. MINER,
10 GERARD E. LYNCH,
11 Circuit Judges.
12
13 _______________________________________
14
15 MAMA DIAWARA,
16 Petitioner,
17
18 v. 08-4189-ag
19 NAC
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL, ET AL.,
22 Respondents.
23 _______________________________________
24
25
26 FOR PETITIONER: Brian I. Kaplan, New York, New York.
1 FOR RESPONDENT: Tony West, Assistant Attorney
2 General; Michael P. Lindemann,
3 Assistant Director; Lyle D. Jentzer,
4 Senior Litigation Counsel;
5 Christopher C. Fuller, Senior
6 Litigation Counsel, Office of
7 Immigration Litigation, United
8 States Department of Justice,
9 Washington, D.C.
10
11 UPON DUE CONSIDERATION of this petition for review of a
12 Board of Immigration Appeals (“BIA”) decision, it is hereby
13 ORDERED, ADJUDGED, AND DECREED that the petition for review
14 is DISMISSED IN PART AND DENIED IN PART.
15 Mama Diawara, a native and citizen of the Ivory Coast,
16 seeks review of a July 24, 2008 order of the BIA affirming
17 the June 16, 2006 decision of Immigration Judge (“IJ”) Helen
18 J. Sichel denying Diawara’s applications for asylum,
19 withholding of removal, and for relief under the Convention
20 Against Torture (“CAT”). In re Mama Diawara, No. A098 363
21 423 (B.I.A. July 24, 2008), aff’g No. A098 363 423 (Immig.
22 Ct. N.Y. June 16, 2006). We assume the parties’ familiarity
23 with the underlying facts and procedural history in this
24 case.
25 “Where the BIA expressly adopts the IJ’s findings and
26 reasoning, as it did here, we review the decision of the IJ
27 as if it were that of the BIA.” See Mei Chai Ye v. U.S.
2
1 Dep’t of Justice, 489 F.3d 517, 523 (2d Cir. 2007) (quoting
2 Chun Gao v. Gonzales,
424 F.3d 122, 124 (2d Cir. 2005)).
3 The IJ’s factual findings, including adverse credibility
4 findings, are reviewed under the substantial evidence
5 standard. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
6 Holder,
562 F.3d 510, 513, (2d Cir. 2009) (stating that “we
7 uphold the IJ’s factual findings if they are supported by
8 ‘reasonable, substantial and probative evidence in the
9 record’” (quoting Lin Zhong v. U.S. Dep’t of Justice, 480
10 F.3d 104, 116 (2d Cir. 2007))).
11 We lack jurisdiction to consider Diawara’s challenge to
12 the agency’s pretermission of his asylum application. See
13 8 U.S.C. § 1158(a)(3) (explaining that no court shall have
14 jurisdiction to review any determination of the Attorney
15 General regarding the timeliness of an asylum application
16 under section 1158(a)(2)(B)). Although we retain
17 jurisdiction to review constitutional claims and questions
18 of law, 8 U.S.C. § 1252(a)(2)(D), Diawara raises no such
19 argument, essentially disputing the IJ’s purely factual
20 finding that Diawara’s testimony regarding his date of entry
21 was not credible. See Xiao Ji Chen v. U.S. Dep’t of
22 Justice,
471 F.3d 315, 329 (2d Cir. 2006) (finding that a
3
1 question of law is not implicated “when the petition for
2 review essentially disputes the correctness of an IJ’s fact-
3 finding or the wisdom of his exercise of discretion”).
4 With respect to Diawara’s applications for withholding
5 of removal and CAT relief, the IJ’s adverse credibility
6 determination is supported by substantial evidence.
7 Contrary to Diawara’s argument, the discrepancies that the
8 IJ relied upon in making her adverse credibility
9 determination were not ancillary. To the contrary, the IJ
10 reasonably questioned whether Diawara was actually from the
11 Ivory Coast — the country where he was allegedly persecuted.
12 For example, Diawara’s national ID card listed his
13 occupation as mechanic, an occupation Diawara never had. A
14 reasonable factfinder would not have been compelled to
15 accept Diawara’s explanation that his aspiration to one day
16 become a mechanic explained this discrepancy. See Majidi v.
17 Gonzales, 430 F.3d 77, 80–81 (2d Cir. 2005) . Moreover,
18 although Diawara claimed to have lived in the Ivory Coast
19 for twenty-three years and testified that he was persecuted
20 because of his imputed sympathies for the RDR
21 (“Rassemblement des Republicaines” or “Rally of
22 Republicans”) party, he did not know that party’s actual
4
1 name. These and other discrepancies undermined Diawara’s
2 credibility and constituted the substantial evidence
3 supporting the IJ’s adverse credibility finding.
4 Because the IJ’s adverse credibility determination was
5 supported by substantial evidence, the IJ reasonably denied
6 Diawara’s application for withholding of removal and CAT
7 relief, as both claims were based on the same factual
8 predicate. See Paul v. Gonzales, 444 F.3d 148, 155-56 (2d
9 Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice,
426 F.3d
10 520, 523 (2d Cir. 2005).
11 For the foregoing reasons, the petition for review is
12 dismissed as to Diawara’s asylum claim and DENIED as to
13 Diawara’s withholding of removal and CAT claims. As we have
14 completed our review, the pending motion for a stay of
15 removal in this petition is DISMISSED as moot.
16
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
19
20 By:___________________________
5
