10-511-ag Jallow v. Holder BIA Chew, IJ A088 377 768 

## 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**  **PERMITTE D 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.** 

### At a stated term of the United States Court of Appeals 1 

### for the Second Circuit, held at the Daniel Patrick Moynihan 2 

### United States Courthouse, 500 Pearl Street, in the City of 3 

### New York, on the 8 **th** 

### day of December, two thousand ten. 4 5 

### PRESENT: 6 

### JOHN M. WALKER, JR., 7 

### ROBERT D. SACK, 8 

### GERARD E. LYNCH, 9 

### Circuit Judges. 10



### ______________________________________ 11 12 

### MODOU SAMBA JALLOW, also known as 13 

### MOUDOU SAMBA JALLOW, also known as 14 

### MOMODOU SAMBA JALLOW, 15 

### Petitioner **,** 16 17 

### v. **10-511-ag** 18 

### NAC 19 

### ERIC H. HOLDER, JR., 20 

### UNITED STATES ATTORNEY GENERAL, 21 

### Respondent **.** 22



### ______________________________________ 23 24 

### FOR PETITIONER: **Ronald S. Salomon, New York, New** 25 

### York. 26 27 

### FOR RESPONDENT: **Tony West, Assistant Attorney** 28 

### General; Shelley R. Goad, Assistant 29 

### Director; Nancy K. Canter, Trial 30 

### Attorney; Office of Immigration 31 

### Litigation, United States Department 32 

### of Justice, Washington, D.C. 33

### 2 UPON DUE CONSIDERATION of this petition for review of a 1 

### Board of Immigration Appeals (“BIA”) decision, it is hereby 2 

### ORDERED, ADJUDGED, AND DECREED, that the petition for review 3 

### is DENIED. 4 

### Modou Samba Jallow, a native and citizen of The Gambia, 5 

### seeks review of a January 14, 2010, order of the BIA 6 

### affirming the July 3, 2008, decision of Immigration Judge 7 

### (“IJ”) George T. Chew, which denied Jallow’s application for 8 

### asylum, withholding of removal, and relief under the 9 

### Convention Against Torture (“CAT”). In re Moudou Samba 10 

### Jallow, No. A088 377 768 (B.I.A. Jan. 14, 2010), aff’g No. 11 

### A088 377 768 (Immig. Ct. N.Y. City July 3, 2008). We 12 

### assume the parties’ familiarity with the underlying facts 13 

### and procedural history in this case. 14 

### Under the circumstances of this case, we review the 15 

### decision of the IJ as supplemented by the BIA. See Yan Chen 16



### v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). The 17 

### applicable standards of review are well-established. 18



### See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey , 534 19 

### F.3d 162, 165-67 (2d Cir. 2008). 20 

### Contrary to Jallow’s position, substantial evidence 21 

### supports the agency’s adverse credibility determination. 22 

### For asylum applications like Jallow’s, governed by the REAL 23

### 3 ID Act, the agency may, considering the totality of the 1 

### circumstances, base a credibility finding on an asylum 2 

### applicant’s demeanor, the plausibility of his account, or 3 

### inconsistencies in his statements, without regard to whether 4 

### they go “to the heart of the applicant’s claim.” 8 U.S.C. 5 

### § 1158(b)(1)(B)(iii). 6 

### The agency reasonably relied on inconsistencies between 7 

### Jallow’s testimony at the merits hearing and information he 8 

### had previously provided. See Xiu Xia Lin , 534 F.3d at 167. 9 

### As the IJ found, Jallow admitted to putting a false 10 

### occupation on his visa application; testified inconsistently 11 

### regarding his departures from The Gambia; testified that he 12 

### was a member of the UDP political party, but stated in his 13 

### asylum application that he was not a member; and omitted 14 

### from his application any assertion that – as he testified – 15 

### he was restrained, beaten, left in the dark, and had water 16 

### poured over him during his second arrest. These 17 

### inconsistencies and omissions provide substantial evidence 18 

### in support of the adverse credibility finding. Id . at 166 19 

### n.3 (holding that for purposes of analyzing a credibility 20 

### determination, “[a]n inconsistency and an omission are . . . 21 

### functionally equivalent.”); Tu Lin v. Gonzales , 446 F.3d 22 

### 395, 402 (2d Cir. 2006); Siewe v. Gonzales , 480 F.3d 160, 23

### 4 170 (2d Cir. 2007). Moreover, contrary to Jallow’s 1 

### argument, these inconsistencies were a sufficient basis for 2 

### the agency’s adverse credibility finding, even if they do 3 

### not go to the heart of his claim. 8 U.S.C. 4 

### § 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 F.3d at 163. 5 

### Given that the adverse credibility determination is 6 

### supported by substantial evidence, Jallow’s argument that 7 

### the agency erred by failing to properly consider the entire 8 

### record is unavailing. We presume that the agency has taken 9 

### into account all of the evidence before it, unless the 10 

### record compellingly suggests otherwise. Xiao Ji Chen v. 11 

### U.S. Dep’t of Justice , 471 F.3d 315, 336 n.17 (2d Cir. 12 

### 2006). At any rate, because the agency reasonably found 13 

### Jallow not credible regarding his own experiences, 14 

### background materials such as country conditions reports 15 

### could not adequately support his claim. 16 

### Because the adverse credibility determination is 17 

### supported by substantial evidence, we do not reach the BIA’s 18 

### determination that Jallow failed to demonstrate that any 19 

### persecution was on account of a protected ground. Because 20 

### Jallow’s claims all were based on the same factual 21 

### predicate, the agency’s adverse credibility determination 22 

### was a proper basis for denial of his application for asylum, 23

### 5 as well as for withholding of removal, and CAT relief. See 1



### Paul v. Gonzales , 444 F.3d 148, 156 (2d Cir. 2006). 2 

### For the foregoing reasons, the petition for review is 3 

### DENIED. As we have completed our review, any stay of 4 

### removal that the Court previously granted in this petition 5 

### is VACATED, and any pending motion for a stay of removal in 6 

### this petition is DISMISSED as moot. Any pending request for 7 

### oral argument in this petition is DENIED in accordance with 8 

### Federal Rule of Appellate Procedure 34(a)(2), and Second 9 

### Circuit Local Rule 34.1(b). 10



### FOR THE COURT: 11 

### Catherine O’Hagan Wolfe, Clerk 12 13