Filed: Sep. 16, 2013
Latest Update: Mar. 28, 2017
Summary: 12-863 Diallo v. Holder BIA Laforest, IJ A098 694 899 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: 12-863 Diallo v. Holder BIA Laforest, IJ A098 694 899 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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12-863
Diallo v. Holder
BIA
Laforest, IJ
A098 694 899
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 13th day of September, two thousand thirteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 DEBRA ANN LIVINGSTON,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11
12 _____________________________________
13
14 MOHAMED DIALLO,
15 Petitioner,
16
17 v. 12-863
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Genet Getachew, Brooklyn, New York.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; John S. Hogan,
28 Senior Litigation Counsel; Channah
29 M. Farber, Trial Attorney, Office of
30 Immigration Litigation, 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 Petitioner Mohamed Diallo, a native and citizen of
6 Guinea, seeks review of a February 7, 2012, decision of the
7 BIA, affirming the January 5, 2010, decision of Immigration
8 Judge (“IJ”) Brigitte Laforest, denying Diallo’s application
9 for asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Mohamed Diallo,
11 No. A098 694 899 (B.I.A. Feb. 7, 2012), aff’g No. A098 694
12 899 (Immig. Ct. N.Y. City Jan. 5, 2010). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 both the IJ’s and the BIA’s opinions “for the sake of
17 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
18 2008). The applicable standards of review are well-
19 established. See 8 U.S.C. § 1252(b)(4)(B); see also Shu Wen
20 Sun v. BIA,
510 F.3d 377, 379 (2d Cir. 2007).
21 Because Diallo filed his asylum application in January
22 2005, the REAL ID Act does not apply in this case. See REAL
2
1 ID Act of 2005, Div. B of Pub. L. No. 109-13, 119 Stat. 302,
2 303 (enacted May 11,2005) (codified at 8 U.S.C.
3 § 1158(b)(1)(B)(iii)); Matter of S-B-, 24 I. & N. Dec. 42,
4 43, 45 (BIA 2006). Although not raised by Diallo, we note
5 that the BIA incorrectly stated that the REAL ID Act applied
6 to Diallo’s application. Nevertheless, it would be futile
7 to remand for the BIA to correct this misstatement because
8 the IJ’s decision does not indicate that she applied the
9 REAL ID Act in evaluating Diallo’s credibility and the BIA’s
10 decision simply affirmed the IJ’s decision. See Shunfu Li
11 v. Mukasey, 529 F.3d 141, 150 (2d Cir. 2008). Moreover, as
12 discussed herein, the IJ’s decision satisfied the pre-REAL
13 ID Act standard for adverse credibility determinations as it
14 was based on “specific, cogent reasons” that bore “a
15 legitimate nexus” to the finding, and the inconsistencies
16 identified were material to the claim raised and were
17 “substantial” when measured against the record as a whole.
18 See Secaida-Rosales v. INS,
331 F.3d 297, 307 (2d Cir.
19 2003), superseded by the REAL ID Act as recognized in Xiu
20 Xia Lin v. Mukasey,
534 F.3d 162, 163-64 (2d Cir. 2008).
21 Indeed, the IJ’s adverse credibility determination was
22 supported by discrepancies among Diallo’s testimony, asylum
3
1 application, medical certificate, and corroborating letters
2 regarding the detention that formed the basis of his claim.
3 See Tu Lin v. Gonzales, 446 F.3d 395, 402-03 (2d Cir. 2006);
4 see also Surinder Singh v. BIA,
488 F.3d 145, 148 (2d Cir.
5 2006). Moreover, Diallo failed to provide compelling
6 explanations for these discrepancies. See Majidi v.
7 Gonzales,
430 F.3d 77, 80-81 (2d Cir. 2005).
8 Given the record discrepancies that go to the heart of
9 Diallo’s claim, we find the IJ’s adverse credibility
10 determination supported by substantial evidence. See Shu
11 Wen Sun, 510 F.3d at 379. Thus, the agency did not err in
12 denying Diallo asylum, withholding of removal, and CAT
13 relief because those claims were based on the same factual
14 predicate. See Paul v. Gonzales,
444 F.3d 148, 156 (2d Cir.
15 2006).
16 For the foregoing reasons, the petition for review is
17 DENIED. As we have completed our review, any stay of
18 removal that the Court previously granted in this petition
19 is VACATED, and any pending motion for a stay of removal in
20 this petition is DISMISSED as moot. Any pending request for
21
22
23
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
