Filed: Jul. 01, 2011
Latest Update: Feb. 22, 2020
Summary: 10-857-ag Sesay v. Holder BIA LaForest, IJ A095 405 335 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: 10-857-ag Sesay v. Holder BIA LaForest, IJ A095 405 335 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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10-857-ag
Sesay v. Holder
BIA
LaForest, IJ
A095 405 335
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 1st day of July, two thousand eleven.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 PIERRE N. LEVAL,
9 ROSEMARY S. POOLER,
10 Circuit Judges.
11 _______________________________________
12
13 MOHAMED SESAY,
14 Petitioner,
15
16 v. 10-857-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Thomas V. Massucci, New York, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Leslie McKay, Assistant
28 Director; Jason Wisecup, Trial
29 Attorney, Office of Immigration
30 Litigation; Civil Division, U.S.
31 Department of Justice, Washington,
32 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 Mohamed Sesay, a native and citizen of Sierra Leone,
6 seeks review of a February 19, 2010, order of the BIA
7 affirming the May 21, 2008, decision of Immigration Judge
8 (“IJ”) Brigitte LaForest denying Sesay’s application for
9 withholding of removal and relief under the Convention
10 Against Torture (“CAT”). In re Mohamed Sesay, No. A095 405
11 335 (B.I.A. Feb. 19, 2010), aff’g No. A095 405 335 (Immig.
12 Ct. N.Y. City May 21, 2008). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 of the case.
15 Under the circumstances of this case, we review the
16 IJ’s decision as the final agency determination. See Mei
17 Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 523 (2d Cir.
18 2007). The agency’s factual findings, including adverse
19 credibility determinations, are reviewed under the
20 substantial evidence standard. See Corovic v. Mukasey, 519
21 F.3d 90, 95 (2d Cir. 2008). Questions of law, and the
22 application of law to undisputed facts, are reviewed de
2
1 novo. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.
2 2008).
3 Substantial evidence supports the IJ’s adverse
4 credibility determination. We will not disturb adverse
5 credibility determinations when they are based on “specific
6 examples in the record of inconsistent statements . . .
7 about matters material to [an applicant’s] claim of
8 persecution, or on contradictory evidence or inherently
9 improbable testimony regarding such matters.” Zhou Yun
10 Zhang v. INS,
386 F.3d 66, 74 (2d Cir. 2004) (internal
11 quotation marks omitted), overruled in part on other grounds
12 by Shi Liang Lin v. U.S. Dep’t of Justice,
494 F.3d 296, 305
13 (2d Cir. 2007). In making the adverse credibility
14 determination in this case, the IJ found Sesay not credible
15 because of inconsistencies between his testimony and his
16 statements in his amended asylum application regarding: (1)
17 the length of time his father was missing after the rebels
18 kidnaped him; (2) when his legs were burned during a rebel
19 attack; and (3) when he left Sierra Leone. As the IJ
20 pointed out specific inconsistencies related to the rebel
21 attacks on Sesay’s family, there is no basis for reversal of
22 the adverse credibility determination. See Zhou Yun Zhang,
3
1 386 F.3d at 74; Secaida-Rosales v. INS,
331 F.3d 297, 307
2 (2d Cir. 2003) (providing that an adverse credibility
3 determination must be based on “specific, cogent reasons”
4 that “bear a legitimate nexus” to the finding); Tu Lin v.
5 Gonzales,
446 F.3d 395, 402 (2d Cir. 2006) (“even where an
6 IJ relies on discrepancies or lacunae that, if taken
7 separately, concern matters collateral or ancillary to the
8 claim, . . . the cumulative effect may nevertheless be
9 deemed consequential by the fact-finder” (internal citations
10 omitted)). We further find no error in the IJ’s refusal to
11 credit Sesay’s explanations for the inconsistencies, as his
12 explanations do not compel a finding of credibility. See
13 Majidi v. Gonzales,
430 F.3d 77, 80-81 (2d Cir. 2005); 8
14 C.F.R. § 1208.3(c)(2) (providing a rebuttable presumption
15 that an asylum applicant is aware of the contents of the
16 application at the time it is filed).
17 Because Sesay’s withholding of removal and CAT claims
18 share the same factual predicate, the IJ’s adverse
19 credibility determination precludes either form of relief.
20 See Paul v. Gonzales,
444 F.3d 148, 157 (2d Cir. 2006).
21 Because the adverse credibility determination is
22 dispositive, we do not reach the agency’s alternate burden
23 of proof findings.
4
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, the pending motion
3 for a stay of removal in this petition is DISMISSED as moot.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
6
5
