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 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 York, on the 8th 4 day of December, two thousand ten.

5

6 PRESENT:

7 JOHN M. WALKER, JR.,

8 ROBERT D. SACK,

9 GERARD E. LYNCH,

10 Circuit Judges.

11 ______________________________________

12

13 MODOU SAMBA JALLOW, also known as 

14 MOUDOU SAMBA JALLOW, also known as 

15 MOMODOU SAMBA JALLOW,

16 Petitioner, 

17

18 v. 10-511-ag

19 NAC

20 ERIC H. HOLDER, JR., 

21 UNITED STATES ATTORNEY GENERAL,

22 Respondent.

23 ______________________________________

24

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

26 York.

27

28 FOR RESPONDENT: Tony West, Assistant Attorney

29 General; Shelley R. Goad, Assistant

30 Director; Nancy K. Canter, Trial

31 Attorney; Office of Immigration

32 Litigation, United States Department

33 of Justice, Washington, D.C.
2

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

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

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

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

9 asylum, withholding of removal, and relief under the

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

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

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

13 assume the parties’ familiarity with the underlying facts

14 and procedural history in this case.

15 Under the circumstances of this case, we review the

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

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

18 applicable standards of review are well-established. 

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

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

21 Contrary to Jallow’s position, substantial evidence

22 supports the agency’s adverse credibility determination. 

23 For asylum applications like Jallow’s, governed by the REAL
3

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

2 circumstances, base a credibility finding on an asylum

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

4 inconsistencies in his statements, without regard to whether

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

6 § 1158(b)(1)(B)(iii). 

7 The agency reasonably relied on inconsistencies between

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

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

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

11 occupation on his visa application; testified inconsistently

12 regarding his departures from The Gambia; testified that he

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

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

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

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

17 poured over him during his second arrest. These

18 inconsistencies and omissions provide substantial evidence

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

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

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

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

23 395, 402 (2d Cir. 2006); Siewe v. Gonzales, 480 F.3d 160,
4

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

2 argument, these inconsistencies were a sufficient basis for

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

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

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

6 Given that the adverse credibility determination is

7 supported by substantial evidence, Jallow’s argument that

8 the agency erred by failing to properly consider the entire

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

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

11 record compellingly suggests otherwise. Xiao Ji Chen v.

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

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

14 Jallow not credible regarding his own experiences,

15 background materials such as country conditions reports

16 could not adequately support his claim. 

17 Because the adverse credibility determination is

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

19 determination that Jallow failed to demonstrate that any

20 persecution was on account of a protected ground. Because

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

22 predicate, the agency’s adverse credibility determination

23 was a proper basis for denial of his application for asylum,
5

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

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

3 For the foregoing reasons, the petition for review is

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

5 removal that the Court previously granted in this petition

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

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

8 oral argument in this petition is DENIED in accordance with

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

10 Circuit Local Rule 34.1(b).

11 FOR THE COURT: 

12 Catherine O’Hagan Wolfe, Clerk 

13