Filed: Jul. 18, 2012
Latest Update: Mar. 26, 2017
Summary: 11-3683 Barry v. Holder BIA Brennan, IJ A093 434 356 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: 11-3683 Barry v. Holder BIA Brennan, IJ A093 434 356 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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11-3683
Barry v. Holder
BIA
Brennan, IJ
A093 434 356
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 for
2 the Second Circuit, held at the Daniel Patrick Moynihan United
3 States Courthouse, 500 Pearl Street, in the City of New York, on
4 the 18th day of July, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 ROBERT D. SACK,
10 RAYMOND J. LOHIER, JR.,
11 Circuit Judges.
12 _____________________________________
13
14 ELHADJ OUMAR BARRY,
15 Petitioner,
16
17 v. 11-3683
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Gary J. Yerman, Yerman & Associates,
25 LLC, New York, N.Y.
26
27 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
28 Attorney General; Carl McIntyre, Jr.,
29 Assistant Director; Marion E. Guyton,
1 Trial Attorney; Office of Immigration
2 Litigation, Civil Division, United
3 States Department of Justice,
4 Washington, D.C.
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 is
9 DENIED.
10 Petitioner Elhadj Oumar Barry, a native and citizen of
11 Guinea, seeks review of an August 25, 2011, decision of the BIA
12 affirming the March 30, 2010, decision of Immigration Judge
13 (“IJ”) Noel Brennan denying his application for asylum,
14 withholding of removal and relief under the Convention Against
15 Torture (“CAT”). In re Elhadj Oumar Barry, No. A093 434 356
16 (B.I.A. Aug. 25, 2011), aff’g No. A093 434 356 (Immig. Ct. N.Y.
17 City Mar. 30, 2010). We assume the parties’ familiarity with
18 the underlying facts and procedural history of the case.
19 Under the circumstances of this case, this Court reviews
20 both the IJ’s and the BIA’s opinions. See Jigme Wangchuck v.
21 DHS, 448 F.3d 524, 528 (2d Cir. 2006). The applicable standards
22 of review are well-established. See 8 U.S.C. § 1252(b)(4)(B);
23 see also Xiu Xia Lin v. Mukasey,
534 F.3d 162, 165-66 (2d Cir.
24 2008) (per curiam).
25 Barry’s asylum application is governed by the REAL ID Act.
2
1 Therefore the agency may (considering the totality of the
2 circumstances) base a credibility finding on an asylum
3 applicant’s demeanor, the plausibility of his account, and
4 inconsistencies in his statements, without regard to whether
5 they go “to the heart of the applicant’s claim.” 8 U.S.C.
6 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.
7 Substantial evidence supports the agency’s determination
8 that Barry did not testify credibly regarding his claim that he
9 was persecuted in Guinea on the basis of his political opinion.
10 The IJ reasonably relied on inconsistencies in the record. See
11 8 U.S.C.§ 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at
12 163-64, 166-67. As the agency noted, Barry’s testimony was
13 internally inconsistent and contradicted his documentary
14 evidence regarding whether and how long he had lived in the
15 United States before his November 2005 admission as a non-
16 immigrant parolee, as well as the details of his November 2005
17 arrest, detention, release and flight to the United States, and
18 the date of his brother’s death. Barry’s explanations for these
19 inconsistencies did not compel the conclusion that Barry was
20 testifying credibly. See Majidi v. Gonzales, 430 F.3d 77, 80-81
21 (2d Cir. 2005) (finding that an agency need not credit an
22 applicant’s explanations unless those explanations would compel
3
1 a reasonable fact-finder to do so). These inconsistencies
2 provide substantial support for the agency’s adverse credibility
3 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii) (providing
4 that the agency may base a credibility determination on
5 inconsistencies between the applicants statements, and “the
6 consistency of such statements with other evidence of record”).
7 The adverse credibility determination is reinforced by the
8 IJ’s demeanor finding, to which we give particular deference.
9 See Zhou Yun Zhang v. INS, 386 F.3d 66, 73-74 (2d Cir. 2004),
10 overruled on other grounds by Shi Liang Lin v. U.S. Dep’t of
11 Justice,
494 F.3d 296 (2d Cir. 2007). The IJ reasonably relied
12 in part on demeanor, noting that Barry’s testimony was
13 frequently hesitant, evasive and non-responsive. I n t h e
14 circumstances, the IJ reasonably relied on Barry’s failure to
15 provide corroborating evidence of persecution. See Biao Yang v.
16 Gonzales,
496 F.3d 268, 273 (2d Cir. 2007). The agency gave
17 limited weight to the letter from Barry’s wife, a ruling that is
18 entitled to particular deference. See Xiao Ji Chen v. U.S. Dep’t
19 of Justice,
471 F.3d 315, 342 (2d Cir. 2006). As the agency
20 observed, Barry testified that his wife was uneducated, had paid
21 someone to write the letter for her and could not be certain of
22 its contents.
4
1 Given the inconsistencies, the failure to corroborate, and
2 this Court’s deference to the agency’s findings regarding
3 demeanor, the agency’s adverse credibility determination was
4 supported by substantial evidence. See 8 U.S.C.
5 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 163-64.
6 Accordingly, the agency did not err in denying Barry’s
7 application for asylum, withholding of removal and CAT relief.
8 See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, any stay of removal
11 that the Court previously granted in this petition is VACATED,
12 and any pending motion for a stay of removal in this petition is
13 DISMISSED as moot. Any pending request for oral argument in this
14 petition is DENIED in accordance with Federal Rule of Appellate
15 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
5
