Filed: Jul. 30, 2014
Latest Update: Mar. 02, 2020
Summary: 13-2055 Sanogo v. Holder BIA Sichel, IJ A088 378 063 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: 13-2055 Sanogo v. Holder BIA Sichel, IJ A088 378 063 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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13-2055
Sanogo v. Holder
BIA
Sichel, IJ
A088 378 063
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 30th day of July, two thousand fourteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 ROBERT D. SACK,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 CHEIK TAHIROU SANOGO, AKA CHEIKTALO
14 SAVADOGO, AKA MAMADOU DIALLO,
15 Petitioner,
16
17 v. 13-2055
18 NAC
19
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: Gary J. Yerman, New York, New York.
26
27 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
28 General; Linda S. Wernery, Assistant
29 Director; William C. Minick, Trial
1 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
9 is DENIED.
10 Cheik Tahirou Sanogo, a purported native and citizen of
11 Ivory Coast, seeks review of an April 30, 2013, decision of
12 the BIA affirming the April 20, 2012, decision of an
13 Immigration Judge (“IJ”), pretermitting his asylum
14 application as untimely and denying withholding of removal
15 and relief under the Convention Against Torture (“CAT”). In
16 re Cheik Tahirou Sanogo, No. A088 378 063 (B.I.A. Apr. 30,
17 2013), aff’g No. A088 378 063 (Immig. Ct. N.Y. City Apr. 20,
18 2012). We assume the parties’ familiarity with the
19 underlying facts and procedural history in this case.
20 Under the circumstances of this case, we have reviewed
21 the decision of the IJ as supplemented by the BIA. See Yan
22 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
23 applicable standards of review are well established. See 8
24 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562
25 F.3d 510, 513 (2d Cir. 2009).
2
1 I. Asylum
2 An asylum applicant must demonstrate “by clear and
3 convincing evidence,” that he filed his application within
4 one year after arriving in the United States. 8 U.S.C.
5 § 1158(a)(2)(B). Our jurisdiction to review the agency’s
6 timeliness determination is limited to constitutional claims
7 and questions of law. See 8 U.S.C. §§ 1158(a)(2)(B), (3),
8 1252(a)(2)(D); Dong Zhong Zheng v. Mukasey, 552 F.3d 277,
9 285 (2d Cir. 2009).
10 The IJ found that Sanogo lacked credibility regarding
11 the date of his last entry to the United States and
12 therefore failed to establish that he timely filed his
13 asylum application. Sanogo challenges the reasonableness of
14 that credibility finding, which is a factual finding we lack
15 jurisdiction to review. See 8 U.S.C. §§ 1158(a)(2)(B), (3),
16 1252(a)(2)(D). Although he also argues that the IJ erred by
17 failing to make a determination of his nationality, a
18 threshold legal question in determining asylum eligibility,
19 see Wangchuck v. DHS,
448 F.3d 524, 528 (2d Cir. 2006), the
20 IJ was not required to reach that issue as Sanogo’s failure
21 to timely file was dispositive, see 8 U.S.C.
22 § 1158(a)(2)(B), (3). Accordingly, we deny Sanogo’s
23 petition to the extent it challenges the denial of asylum.
3
1 II. Adverse Credibility Determination
2 For applications such as Sanogo’s, governed by the REAL
3 ID Act of 2005, the agency may, “[c]onsidering the totality
4 of the circumstances,” base a credibility finding on the
5 applicant’s “demeanor, candor, or responsiveness,” the
6 plausibility of his account, and inconsistencies in his
7 statements, without regard to whether they go “to the heart
8 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii);
9 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008)
10 (per curiam). “We defer therefore to an IJ’s credibility
11 determination unless, from the totality of the
12 circumstances, it is plain that no reasonable fact-finder
13 could make such an adverse credibility ruling.” Xiu Xia
14
Lin, 534 F.3d at 167.
15 The adverse credibility determination here is supported
16 by substantial evidence. The IJ reasonably relied on the
17 following inconsistencies and omissions: (1) Sanogo’s
18 application did not mention his hospital visit upon his
19 release from Ivorian police custody; (2) he testified that
20 he first traveled to Burkina Faso and applied for a U.S.
21 visa upon his release in order to escape further harm, but
22 later conceded he had previously applied for a student visa
4
1 in Burkina Faso in 2003 and 2004; (3) he returned to Ivory
2 Coast in 2006 because he believed “there would be no more
3 problem[s],” but undermined that statement by conceding he
4 had been aware of increased violence against ethnic Dioulas
5 that year and by explaining that his father had been
6 attacked earlier in 2006; (4) he then changed the year of
7 his father’s attack to 2007; and (5) he testified that he
8 gave his attorney the passport he used to enter Ivory Coast,
9 but, when the attorney denied receiving it, said it was
10 stolen during his father’s attack. See 8 U.S.C.
11 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 166.
12 The adverse credibility determination is further
13 supported by the IJ’s demeanor finding to which we generally
14 defer and of which can be particularly confident because
15 Sanogo’s non-responsive testimony is reflected in the
16 hearing transcript. See Li Hua Lin v. U.S. Dep’t of
17 Justice,
453 F.3d 99, 109 (2d Cir. 2006).
18 The IJ also properly considered Sanogo’s failure to
19 provide convincing corroborating evidence in finding him not
20 credible. See Biao Yang v. Gonzales,
496 F.3d 268, 273 (2d
21 Cir. 2007). When an applicant’s testimony has already been
22 called into question, a failure to corroborate may further
5
1 bear on the applicant’s credibility. Id. The IJ reasonably
2 expected evidence that Sanogo was a member of the Rally of
3 the Republicans (“RDR”), participated in protests, sought
4 medical attention after his detention, and returned to the
5 Ivory Coast in 2006. See
id. Although Sanogo asserted that
6 his RDR membership papers had been confiscated and that his
7 father, an RDR opponent, refused to obtain replacements, the
8 IJ reasonably rejected this explanation because his father
9 had twice facilitated his travel to the United States and
10 had no reason not to obtain these documents. See Majidi v.
11 Gonzales,
430 F.3d 77, 80-81 (2d Cir. 2005) (providing that
12 the agency need not credit an applicant’s explanations
13 unless they would compel a reasonable fact-finder to do so).
14 The IJ also reasonably rejected Sanogo’s explanation that
15 his passport was stolen from his father because his
16 testimony regarding that attack was inconsistent. See
id.
17 Given these inconsistencies, the omission, the lack of
18 corroboration, and Sanogo’s non-responsive testimony, the
19 totality of the circumstances supports the agency’s adverse
20 credibility determination. See Xiu Xia
Lin, 534 F.3d at
21 167; Yanqin
Weng, 562 F.3d at 513. The adverse credibility
22 determination necessarily precludes withholding of removal
6
1 and CAT relief to the extent they relied on Sanogo’s RDR
2 membership and claim that his family was attacked. See Paul
3 v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
4 III. Future Harm based on Ethnicity
5 It is unclear whether the IJ found that Sanogo’s lack
6 of credibility also undermined his claim of Dioula
7 ethnicity. The IJ’s adverse credibility determination
8 therefore did not preclude withholding or CAT relief based
9 on that claim. See
Paul, 444 F.3d at 156 (requiring a
10 separate analysis of withholding and CAT eligibility when
11 claim is not entirely predicated on testimony deemed not
12 credible). Nevertheless, as the IJ reasonably found, Sanogo
13 failed to establish a likelihood of harm based on his
14 ethnicity, given that his evidence did not address Dioulas
15 specifically, and the 2007, 2008, and 2010 U.S. State
16 Department Human Rights Reports state that the Ivorian
17 government outlawed racism and tribalism and that, with the
18 exception of some violence between other tribes, there is
19 only inter-tribal discrimination. See 8 C.F.R. §§ 1208.16©,
20 1208.17.
21
7
1 For the foregoing reasons, the petition for review is
2 DENIED.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
6
7
8
