Filed: Jun. 14, 2012
Latest Update: Feb. 12, 2020
Summary: 11-764-ag Ba v. Holder BIA Nelson, IJ A079 583 050 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 NOTA
Summary: 11-764-ag Ba v. Holder BIA Nelson, IJ A079 583 050 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 NOTAT..
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11-764-ag
Ba v. Holder
BIA
Nelson, IJ
A079 583 050
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 New
4 York, on the 14th 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 SAIDOU AMADOU BA,
15 Petitioner,
16
17 v. 11-764-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Lawrence J. Hutchison, Columbus,
25 Ohio.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Greg D. Mack, Senior
29 Litigation Counsel; Lisa M. Damiano,
30 Trial Attorney, Office of
31 Immigration Litigation, United
32 States Department of Justice,
33 Washington, 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 Saidou Amadou Ba, a native and citizen of Mauritania,
6 seeks review of a January 31, 2011, order of the BIA
7 affirming the March 25, 2009, decision of Immigration Judge
8 (“IJ”) Barbara A. Nelson, which denied his application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Ba, No. A079 583
11 050 (B.I.A. Jan. 31, 2011), aff’g No. A079 583 050 (Immig.
12 Ct. N.Y. City Mar. 25, 2009). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we have reviewed
16 the decision of the IJ as supplemented by the BIA. See Yan
17 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established. See
19 Salimatou Bah v. Mukasey,
529 F.3d 99, 110 (2d Cir. 2008);
20 Shu Wen Sun v. BIA,
510 F.3d 377, 379 (2d Cir. 2007).
21 Because, as the government points out, Ba did not
22 raise, on appeal to the BIA, his claims that the agency
23 violated his due process right, and that he was prejudiced
2
1 by his former attorney’s ineffective assistance, those
2 claims are unexhausted and we are without jurisdiction to
3 consider them in our review of the January 2011 BIA
4 decision. See 8 U.S.C. § 1252(d)(1); Lin Zhong v. U.S.
5 Dep’t of Justice, 480 F.3d 104, 119-20, 124-25 (2d Cir.
6 2007); Theodoropoulos v. INS,
358 F.3d 162, 172-73 (2d Cir.
7 2004). Consequently, the only issue before us is the
8 agency’s adverse credibility determination.
9 Inconsistencies and other discrepancies in the evidence
10 are often sufficient to support an adverse credibility
11 determination, but they need not be fatal if they are minor
12 and isolated, and the testimony is otherwise generally
13 consistent, rational, and believable. See Diallo v. BIA,
14
548 F.3d 232, 234 & n.1 (2d Cir. 2008)(applying standard
15 applicable to asylum claims filed before May 11, 2005,
16 effective date of REAL ID Act of 2005, Pub. L. No. 109-13,
17 119 Stat. 231). In finding Ba not credible, the agency
18 depended primarily on a discrepancy between his supplemental
19 statement and testimony as to when and where he was arrested
20 1992, as well as on internal inconsistencies in his
21 testimony regarding when he decided to leave Mauritania.
22 When asked about the inconsistency regarding where and when
3
1 he was arrested in 1992, Ba stated only that there were
2 “some things” he needed “to wait until . . . [his] hearing
3 to explain.” CAR at 384. The agency reasonably declined to
4 credit this explanation. See Majidi v. Gonzales, 430 F.3d
5 77, 80-81 (2d Cir. 2005). Moreover, because this
6 discrepancy went to the heart of Ba’s claim of past
7 persecution, and is “substantial” when measured against the
8 record as a whole, the agency did not err in relying upon it
9 to find him not credible. See Secaida-Rosales v. INS, 331
10 F.3d 297, 308-09 (2d Cir. 2003).1
11 The agency also reasonably relied on Ba’s lack of
12 evidence to corroborate his claim that he had been arrested
13 twice in Mauritania. See Biao Yang v. Gonzales,
496 F.3d
14 268, 273 (2d Cir. 2007) (“the absence of corroboration in
1
The other discrepancy relied upon by the agency,
regarding when Ba decided to leave Mauritania, is not
substantial when weighed against the record as a whole.
See Secaida-Rosales, 331 F.3d at 307. The IJ concluded
that because Ba began making arrangements to leave
Mauritania prior to his friend’s arrest, his statement
that he knew he would have to leave after his friend was
arrested was “a serious inconsistency.” CAR at 172.
However, Ba consistently testified that he began making
arrangements to leave Mauritania at the beginning of
2001, and then decided with certainty that he had to
leave after his friend was arrested. See Ramsameachire
v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004)(“[W]e will
reverse where the adverse credibility determination is
based upon . . . an incorrect analysis of the testimony.”
(internal quotation marks omitted)).
4
1 general makes an applicant unable to rehabilitate testimony
2 that has already been called into question”). The IJ
3 sufficiently inquired as to the availability of the evidence
4 as she asked Ba whether there was any evidence available to
5 support his claim, specifically, letters from his family
6 members allegedly present when he was arrested in 1992, and
7 when he was released from detention in 2000 and who saw the
8 injuries he had sustained. Ba stated that he had not asked
9 his family members to write letters for him, but that if he
10 did ask them, they would not “have any problem” doing so.
11 CAR at 385-87. See Li Zu Guan v. INS, 453 F.3d 129, 141 (2d
12 Cir. 2006) (holding that agency’s standard for written
13 corroboration “must be calibrated to the norms and practices
14 of the aliens’ home countries”). Ba did not however
15 subsequently submit any corroborating evidence to the IJ or
16 on appeal to the BIA.
17 The inconsistency identified by the IJ as to where and
18 when Ba was arrested in 1992 is supported by substantial
19 evidence and goes to the heart of his claim. See Secaida-
20
Rosales, 331 F.3d at 308-09. Ultimately, given the
21 discrepancy regarding Ba’s arrest, as well as the lack of
22 corroborating evidence to support his claim, the agency’s
23 adverse credibility determination is supported by
5
1 substantial evidence. See Shu Wen Sun, 510 F.3d at 380.
2 Furthermore, because the only evidence of a threat to Ba’s
3 life or freedom, or that he is likely to be tortured,
4 depends upon his credibility, the adverse credibility
5 determination in this case necessarily precludes success on
6 the claims for asylum, withholding of removal, and CAT
7 relief. See Paul v. Gonzales,
444 F.3d 148, 156 (2d Cir.
8 2006); Xue Hong Yang v. U.S. Dep’t of Justice,
426 F.3d 520,
9 523 (2d Cir. 2005).
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, any stay of
12 removal that the Court previously granted in this petition
13 is VACATED, and any pending motion for a stay of removal in
14 this petition is DENIED as moot. The pending motion to hold
15 the petition for review in abeyance is DENIED as moot. Any
16 pending request for oral argument in this petition is DENIED
17 in accordance with Federal Rule of Appellate Procedure
18 34(a)(2), and Second Circuit Local Rule 34.1(b).
19
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
23
6
