Filed: Jun. 04, 2012
Latest Update: Feb. 12, 2020
Summary: 09-4979-ag Diakite v. U.S. DOJ BIA Sichel, IJ A097 852 249 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
Summary: 09-4979-ag Diakite v. U.S. DOJ BIA Sichel, IJ A097 852 249 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 T..
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09-4979-ag
Diakite v. U.S. DOJ
BIA
Sichel, IJ
A097 852 249
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 4th day of June, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 ROBERT D. SACK,
10 REENA RAGGI,
11 Circuit Judges.
12 _________________________________________
13
14 BAKARI DIAKITE,
15 Petitioner,
16
17 v. 09-4979-ag
18 NAC
19 UNITED STATES DEPARTMENT OF JUSTICE,
20 BOARD OF IMMIGRATION APPEALS,
21 Respondents.
22 _______________________________________
23
24 FOR PETITIONER: Brian I. Kaplan, Goldberg & Kaplan,
25 LLP, New York, NY.
26
27 FOR RESPONDENTS: Loretta E. Lynch, United States
28 Attorney; Varuni Nelson; Scott Dunn;
29 Margaret M. Kolbe, Assistant United
1 States Attorneys; Dione M. Enea,
2 Special Assistant United States
3 Attorney, Of Counsel, Eastern
4 District of New York, Brooklyn, NY.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED, that the petition for review
9 is DENIED.
10 Bakari Diakite, a native and citizen of the Democratic
11 Republic of the Congo (“DRC”), seeks review of a November 3,
12 2009, order of the BIA affirming the March 18, 2008,
13 decision of Immigration Judge (“IJ”) Helen J. Sichel, which
14 denied his application for asylum, withholding of removal,
15 and relief under the Convention Against Torture (“CAT”). In
16 re Diakite, No. A097 852 249 (B.I.A. Nov. 3, 2009), aff’g
17 No. A097 852 249 (Immig. Ct. N.Y. City Mar. 18, 2008). We
18 assume the parties’ familiarity with the underlying facts
19 and procedural history in this case.
20 Under the circumstances of this case, we have reviewed
21 the IJ’s decision as modified by the BIA decision, and
22 address only the adverse credibility determination. See Xue
23 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d
24 Cir. 2005). The applicable standards of review are well-
2
1 established. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110
2 (2d Cir. 2008); Shu Wen Sun v. BIA,
510 F.3d 377, 379 (2d
3 Cir. 2007).
4 To form the basis of an adverse credibility
5 determination, a discrepancy must be “substantial” when
6 measured against the record as a whole. See Latifi v.
7 Gonzales,
430 F.3d 103, 105 (2d Cir. 2005). At the same
8 time, however, “even where an IJ relies on discrepancies or
9 lacunae that, if taken separately, concern matters
10 collateral or ancillary to the claim, . . . the cumulative
11 effect may nevertheless be deemed consequential by the
12 fact-finder.” Tu Lin v. Gonzales,
446 F.3d 395, 402 (2d Cir.
13 2006) (internal citations omitted). The agency’s adverse
14 credibility finding in this case was based on an
15 accumulation of factors, including the inconsistency in
16 Diakite’s testimony as to when his family store was robbed
17 and destroyed, inconsistencies among his testimony, asylum
18 application and corroborating evidence as to when he entered
19 the United States, and a discrepancy between his testimony
20 and his corroborating evidence as to the date of, and events
21 during, the incident which precipitated Diakite’s departure
22 from the DRC.
3
1 These inconsistencies were substantial when measured
2 against the record as a whole, and IJ provided specific and
3 cogent reasons for relying upon them in finding Diakite not
4 credible. The agency therefore did not err in concluding
5 that Diakite was not credible. See Majidi v. Gonzales, 430
6 F.3d 77, 79-80 (2d Cir. 2005); Secaida-Rosales v. INS, 331
7 F.3d 297, 308-09 (2d Cir. 2003).* The adverse credibility
8 determination precludes success on the claims for asylum,
9 withholding of removal, and CAT relief, because the only
10 evidence of a threat to Diakite’s life or freedom, or that
11 he was likely to be tortured, depended upon his credibility.
12 See Paul v. Gonzales,
444 F.3d 148, 156 (2d Cir. 2006); Xue
13 Hong Yang v. U.S. Dep’t of Justice,
426 F.3d 520, 523 (2d
14 Cir. 2005).
15 For the foregoing reasons, the petition for review is
16 DENIED. As we have completed our review, any stay of
17 removal that this Court previously granted in this petition
18 is VACATED, and any pending motion for a stay of removal in
19 this petition is DISMISSED as moot. Any pending request for
*
Because Diakite applied for asylum prior to the
enactment of the Real ID Act, Secaida-Rosales is
applicable. See Dong Zhong Zheng v. Mukasey, 552 F.3d
277, 287 n.6 (2d Cir. 2009).
4
1 oral argument in this petition is DENIED in accordance with
2 Federal Rule of Appellate Procedure 34(a)(2), and Second
3 Circuit Local Rule 34.1(b).
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
6
7
5
