Filed: Sep. 07, 2010
Latest Update: Feb. 21, 2020
Summary: 09-5017-ag Sow v. Holder BIA Elstein, IJ A098 587 051 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: 09-5017-ag Sow v. Holder BIA Elstein, IJ A098 587 051 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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09-5017-ag
Sow v. Holder
BIA
Elstein, IJ
A098 587 051
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.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York,
on the 7 th day of September, two thousand ten.
PRESENT:
JON O. NEWMAN,
JOSÉ A. CABRANES,
DENNY CHIN,
Circuit Judges.
_______________________________________
MAMADOU SOW,
Petitioner,
v. 09-5017-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Ronald S. Salomon, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney General;
John S. Hogan, Senior Litigation
Counsel; Channah M. Farber, Attorney,
Office of Immigration Litigation,
Civil Division, United States
Department of Justice, Washington,
D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED.
Petitioner Mamadou Sow, a native and citizen of Guinea,
seeks review of a November 4, 2009, order of the BIA, affirming
the March 10, 2008, decision of Immigration Judge (“IJ”)
Annette S. Elstein, pretermitting his asylum application and
denying his application for withholding of removal and relief
under the Convention Against Torture (“CAT”). In re Mamadou
Sow, No. A098 587 051 (B.I.A. Nov. 4, 2009), aff’g No. A098 587
051 (Immig. Ct. N.Y. City Mar. 10, 2008). We assume the
parties’ familiarity with the underlying facts and procedural
history of the case.
Under the circumstances of this case, we review both the
IJ’s and the BIA’s decisions. See Yun-Zui Guan v. Gonzales,
432 F.3d 391, 394 (2d Cir. 2005). The applicable standards of
review are well-established. See 8 U.S.C. § 1252(b)(4)(B);
Yanqin Weng v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
As an initial matter, Sow concedes that this Court is
without jurisdiction to consider the IJ’s pretermission of his
asylum application. See 8 U.S.C. § 1158(a)(3). We therefore
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review only his challenge to the agency’s denial of his
application for withholding of removal and CAT relief.
Substantial evidence supports the IJ’s adverse credibility
determination. 1 The IJ found that: (1) although Sow testified
that he was not injured when soldiers came to his home in 1998,
he stated in his asylum application that the soldiers beat him
“nearly to death”; (2) although Sow testified that, during his
alleged detention, prison guards interrogated him only once and
did not harm him, his wife’s letter and his asylum application
both stated that the guards threatened, beat, interrogated, and
tortured him; and (3) although Sow testified that he was
imprisoned from March 2003 to March 2004, his asylum
application indicated that he was imprisoned from September
2003 to March 2004. Although minor and isolated discrepancies
may be insufficient to support an adverse credibility finding,
see Diallo v. INS, 232 F.3d 279, 285-86 (2d Cir. 2000), the
multiple discrepancies here were not isolated, and related to
events at the heart of Sow’s claim – that he suffered past
persecution and feared future persecution based on his
1
Because Sow filed his asylum application before May 11,
2005, the amendments made to the Immigration and Nationality
Act by the REAL ID Act of 2005 do not apply to his asylum
application. See Pub. L. No. 109-13, § 101(h)(2), 119 Stat.
231, 305 (2005).
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membership in the Rally for the People of Guinea.
The IJ also reasonably found Sow’s testimony implausible,
as he testified that, although he was not in contact with his
wife while he was imprisoned from March 2003 to March 2004, his
wife was pregnant for eleven months before she gave birth to
his child in February 2004. Given the inherent implausibility
of that testimony, the IJ reasonably relied on this finding as
further support for the adverse credibility determination. See
Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007) (holding
that “[an IJ’s speculation] is not ‘bald’ if the inference is
made available to the factfinder by record facts, or even a
single fact, viewed in the light of common sense and ordinary
experience”).
Furthermore, contrary to Sow’s position, a reasonable
fact-finder would not be compelled to conclude that the agency
ignored any of the evidence that he submitted. Indeed, the
agency is not required to “expressly parse or refute on the
record each individual argument or piece of evidence offered
by the petitioner” as long as it “has given reasoned
consideration to the petition, and made adequate findings.”
See Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006);
see also Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 315,
337 n.17 (2d Cir. 2006). Here, both the BIA and the IJ
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considered Sow’s evidence in some detail and found him not
credible.
Accordingly, substantial evidence supports the agency’s
adverse credibility determination. See Zhou Yun Zhang v. INS,
386 F.3d 66, 74 (2d Cir. 2004), overruled in part on other
grounds by Shi Liang Lin v. U.S. Dept. of Justice,
494 F.3d
296, 305 (2d Cir. 2007) (en banc). Because the only evidence
of a threat to Sow’s life or freedom depended upon his
credibility, the adverse credibility determination in this case
necessarily precludes success on his claim for withholding of
removal and CAT relief. See Paul v. Gonzales,
444 F.3d 148,
156 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument in
this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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