Bah v. Gonzales, (2nd Cir. 2007)

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06-3460-ag

Bah v. Gonzales

BIA

Ferris, IJ

A96 241 218

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R U L I N G S BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED

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A t a stated term of the United States Court of Appeals

f o r the Second Circuit, held at the Daniel Patrick Moynihan

U n i t e d States Courthouse, 500 Pearl Street, in the City of

N e w York, on the 18th day of June, two thousand seven.

PRESENT:

H O N . JOSÉ A. CABRANES,

H O N . ROSEMARY S. POOLER,

H O N . BARRINGTON D. PARKER,

C i r c u i t Judges.

A B D O U L A Y E BAH,

Petitioner,

v. 06-3460-ag

NAC

A L B E R T O R. GONZALES, ATTORNEY GENERAL,

Respondent.

F O R PETITIONER: M a t t h e w J. Harris, New York, New

York.

F O R RESPONDENT: S t e v e n W. Myhre, Acting United S t a t e s Attorney for the District of N e v a d a , Robert L. Ellman, Appellate C h i e f , United States Attorney's O f f i c e , Las Vegas, Nevada.

U P O N DUE CONSIDERATION of this petition for review of a d e c i s i o n of the Board of Immigration Appeals ("BIA"), it is h e r e b y ORDERED, ADJUDGED, AND DECREED that the petition for r e v i e w is DENIED.

P e t i t i o n e r Abdoulaye Bah, a native and citizen of G u i n e a , seeks review of a June 23, 2006 order of the BIA a f f i r m i n g the February 9, 2005 decision of Immigration Judge ( " I J " ) Noel Ferris denying petitioner's application for a s y l u m , withholding of removal, and relief under the C o n v e n t i o n Against Torture ("CAT"). In re Abdoulaye Bah, N o . A96 241 218 (B.I.A. June 23, 2006), aff'g No. A96 241 2 1 8 (Immig. Ct. New York City Feb. 9, 2005). We assume the p a r t i e s ' familiarity with the underlying facts and p r o c e d u r a l history of the case W h e n the IJ's decision rests on multiple alternate g r o u n d s and the BIA adopts and affirms that decision without e x p r e s s l y addressing each of the grounds, this Court may r e v i e w the entire IJ decision and need not confine its r e v i e w to the grounds expressly addressed by the BIA. See M i n g Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir. 2006).

T h i s Court reviews the agency's factual findings, including a d v e r s e credibility determinations, under the substantial e v i d e n c e standard, treating them as "conclusive unless any r e a s o n a b l e adjudicator would be compelled to conclude to the c o n t r a r y . " 8U.S.C. § 1252(b)(4)(B); see, e.g., Zhou Yun Z h a n g v. INS, 386 F.3d 66, 73 & n.7 (2d Cir. 2004).

N e v e r t h e l e s s , "the fact that the [agency] has relied p r i m a r i l y on credibility grounds in dismissing an asylum a p p l i c a t i o n cannot insulate the decision from review." R a m s a m e a c h i r e v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).

A n adverse credibility determination must be based on " s p e c i f i c , cogent reasons" that "bear a legitimate nexus" to t h e finding. Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d C i r . 2003).

A d v e r s e Credibility Determination B a h ' s challenge to the IJ's adverse credibility d e t e r m i n a t i o n is without merit because, as a whole, there is s u b s t a n t i a l evidence to support the adverse credibility determination.

C o n t r a r y to Bah's contention, an IJ may base a c r e d i b i l i t y determination on an applicant's demeanor. See M a j i d i v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005) ( p o i n t i n g out the significance of the particular weight to b e given to the IJ's assessment of witness demeanor). This C o u r t gives "particular deference" to adverse credibility f i n d i n g s based on demeanor. Cf. Dong Gao v. Bd. of I m m i g r a t i o n Appeals, ___ F.3d ___, 2007 WL 914633 at *10-11 ( 2 d Cir. March 28, 2007)(overturning an adverse credibility f i n d i n g where the finding was based on misstatements in the r e c o r d and the IJ had not relied on demeanor as further s u p p o r t for the decision). Because the IJ relied on d e m e a n o r , giving specific examples of the problems with B a h ' s demeanor, the IJ's credibility determination must be g i v e n particular deference. Moreover, Bah's challenges to t h e IJ's findings regarding inconsistencies are also without m e r i t and add further support to the adverse credibility determination.

F i r s t , the IJ correctly found that Bah had made i n c o n s i s t e n t statements regarding his father's exile, as his w r i t t e n statements indicated that he had distributed c a m p a i g n materials for his father in 1993 and 1998, but also i n d i c a t e d that his father had gone into hiding in 1993 and s u b s e q u e n t l y into exile and that he had not seen his father i n ten years. In contrast, Bah testified that he had last s e e n his father in late 1998 or early 1999. Bah's e x p l a n a t i o n that his father went into hiding in 1993 and e x i l e in 1999 does not resolve this issue, as Bah did not e x p l a i n why his written statement indicated that he had not s e e n his father in ten years, but he testified that he had l a s t seen him in 1999. Moreover, Bah's claim that the i n c o n s i s t e n c y is not probative of his credibility is without m e r i t as an adverse credibility determination may be based o n cumulative inconsistencies, even those collateral to the b a s i s of the claim. See Tu Lin v. Gonzales, 446 F.3d 395, 4 0 2 (2d Cir. 2006) (holding that an IJ may rely on the c u m u l a t i v e affect of inconsistencies concerning collateral matters). Thus, even if the discrepancy is collateral, g i v e n the demeanor finding and other inconsistencies, the IJ d i d not err by relying on this inconsistency. Id.

The IJ's reliance on Bah's failure to reference the t h r e a t s to his wife in his written application or on direct e x a m i n a t i o n further supports the IJ's finding. Although an I J should not base an adverse credibility determination on t h e omission of minor events from a written statement where a reasonable explanation has been given for the omission, s e e Secaida-Rosales, 331 F.3d at 309, Bah was unable to give a clear explanation for his omission. Because Bah gave n u m e r o u s dates when asked when the incident occurred, the IJ d i d not err in relying on this discrepancy. See, e.g., M a j i d i , 430 F.3d at 80-81 (holding that the IJ need not c r e d i t an applicant's explanations for inconsistent t e s t i m o n y unless those explanations would compel a r e a s o n a b l e fact-finder to do so).

Finally, Bah's challenge to the IJ's finding that he f a i l e d to present sufficient corroborating evidence is also w i t h o u t merit. The IJ correctly noted that although Bah's u n c l e submitted a letter, it failed to give any details r e g a r d i n g the injuries that Bah suffered, the length of his 2 0 0 1 detention, or the reasons for the arrests or detention.

A s such, Bah's failure to provide sufficient corroborative e v i d e n c e left him unable to rehabilitate testimony that has a l r e a d y been called into question. See Xiao Ji Chen v. U.S.

D e p ' t of Justice, 471 F.3d 315, 341 (2d Cir. 2006).

M o r e o v e r , additional corroborating evidence clearly was r e a s o n a b l y available given that Bah had submitted one letter f r o m his uncle. See Li Zu Guan v. INS, 453 F3d 129, 140-41 ( 2 d Cir. 2006).

G i v e n the deference due to the IJ's decision, based on t h e demeanor finding and the additional inconsistencies, o m i s s i o n s , implausibility, and lack of corroboration d i s c u s s e d above, there is substantial evidence to support t h e IJ's denial of asylum. As asylum and withholding of r e m o v a l "are factually related but with a heavier burden for w i t h h o l d i n g , it follows that an applicant who fails to e s t a b l i s h his eligibility for asylum necessarily fails to e s t a b l i s h eligibility for withholding." Zhou Yun Zhang, 386 F . 3 d . at 71; see Paul v. Gonzales, 444 F.3d 148, 156 (2d C i r . 2006). Bah argues no basis for setting aside the IJ's d e n i a l of CAT relief beyond the purported unsustainability o f her credibility findings. Because the credibility f i n d i n g s are supported by substantial evidence, we do not d i s t u r b the denial of CAT relief. Because we uphold the I J ' s adverse credibility finding, we need not reach her a l t e r n a t i v e discretionary denial of asylum. Nonetheless, we n o t e that a discretionary denial must be reserved for only " t h e most egregious adverse factors" and that an IJ abuses h e r discretion by failing to weigh all of the relevant factors. See Wu Zheng Huang v. I.N.S., 436 F.3d 89, 96-99 ( 2 d Cir. 2006).

F o r the foregoing reasons the petition for review is DENIED. Having completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot.

F O R THE COURT: C a t h e r i n e O'Hagan Wolfe, Clerk B y :

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