13

‐ 893

Barry v. Holder

BIA

Hom, IJ

A094 048 716



### 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.

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley

Square, in the City of New York, on the 28 th day of October, two thousand

fourteen.

PRESENT:

AMALYA L. KEARSE,

RICHARD C. WESLEY,

DENNY CHIN,

Circuit Judges

.

_____________________________________

ALPHA ABDOULAYE BARRY,

Petitioner

,

v. No. 13

‐ 893

ERIC H. HOLDER, JR., UNITED STATES

ATTORNEY GENERAL,

Respondent

.

_____________________________________

FOR PETITIONER: THOMAS V. MASSUCCI, New York, NY.FOR RESPONDENT: RUSSELL J.E. VERBY, Senior Litigation Counsel;

Stuart F. Delery, Assistant Attorney General;

Kristin Moresi, Trial Attorney, Office of

Immigration Litigation, United States Department

of Justice, Washington, D.C.

UPON DUE CONSIDERATION of this petition for review of a Board of

Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED,

AND DECREED that the petition for review is DENIED.

Alpha Abdoulaye Barry, a native and citizen of Guinea, seeks review of a

February 14, 2013 decision of the BIA affirming an Immigration Judge’s (“IJ”)

March 3, 2011 and January 23, 2008 decisions denying his application for asylum,

withholding of removal, and relief under the Convention Against Torture

(“CAT”). See In re Alpha Abdoulaye Barry

, No. A094 048 716 (B.I.A. Feb. 14, 2013),

aff’g No. A094 048 716 (Immig. Ct. N.Y. City Mar. 3, 2011 and Jan. 23, 2008). We

assume the parties’ familiarity with the underlying facts and procedural history

in this case.

Because the IJ’s 2011 decision adopted and supplemented the IJ’s 2011 and

2008 decisions, this Court has reviewed both IJ decisions as supplemented by the

BIA. See Yan Chen v. Gonzales

, 417 F.3d 268, 271 (2d Cir. 2005). The applicable

standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B); see also

2Yanqin Weng v. Holder

, 562 F.3d 510, 513 (2d Cir. 2009). Because Barry does not

challenge the denial of CAT relief, we address only asylum and withholding of

removal.

For applications such as Barry’s, governed by the REAL ID Act of 2005, the

agency may, “[c]onsidering the totality of the circumstances,” base a credibility

finding on the applicant’s “demeanor, candor, or responsiveness,” the

plausibility of his account, and inconsistencies in his statements, without regard

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

§ 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per

curiam). We “defer therefore to an IJ’s credibility determination unless, from the

totality of the circumstances, it is plain that no reasonable fact

‐ finder could

make” such a ruling. Xiu Xia Lin

, 534 F.3d at 167. Here, the IJ made an explicit

adverse credibility determination. Although Barry’s brief in support of his

petition contended that the IJ did not make a credibility determination, his

counsel at oral argument rightly conceded that such a determination had been

made. That determination is sufficiently supported. The IJ reasonably called

Barry’s testimony into question because it was implausible and inconsistent with

some of the documentary evidence he submitted. See id. at 166 n.3. As a result,

3the IJ did not err in further basing the finding on Barry’s failure to provide

reasonably available corroborating evidence. Barry testified that he was arrested,

detained, beaten, and fined because he was a member of the Rally for the People

of Guinea (“RPG”), a Guinean political party. Barry further testified that since

arriving in the United States he has given money to the RPG in New York.

However, Barry also stated that his income is barely sufficient to pay for his

housing and other basic living expenses. And although a letter Barry submitted

from the New York RPG branch confirmed that he had been a member of the

organization in Guinea since 1993, the letter made no mention of any

mistreatment. Barry asserted that the reason the letter did not mention any

mistreatment was because he had never told the branch of his mistreatment

because he did not believe it was their concern. The IJ reasonably found that

explanation implausible and relied on the inconsistency between Barry’s

testimony and documentary evidence and the implausibility of his assertion that

he gave money to the RPG in New York to make an adverse credibility

determination. See Siewe v. Gonzales

, 480 F.3d 160, 168

‐ 69 (2d Cir. 2007); 8 U.S.C.

§ 1158(b)(1)(B)(iii).

4The IJ also reasonably required additional evidence, which Barry failed to

submit. Specifically, Barry did not submit: his Guinean RPG membership card,

though he testified that he believed his wife had it; an affidavit from his uncle,

who had paid the fine for his release, or any other evidence of the fine; or

witnesses from the New York RPG branch, to corroborate his RPG activities in

the United States. Barry did not testify that any of this evidence was unavailable.

Thus, absent contrary evidence, the IJ reasonably found it was available and

should have been provided. See Li Zu Guan v. INS

, 453 F.3d 129, 141 (2d Cir.

2006). The IJ also reasonably found that Barry’s documentary evidence did not

rehabilitate his testimony. Even assuming that the letters from the RPG and his

wife were properly entered into evidence, the IJ reasonably gave them minimal

weight because they were not sworn before third parties and their authors were

unavailable for cross

‐ examination. See Xiao Ji Chen v. U.S. Dep’t of Justice

, 471

F.3d 315, 342 (2d Cir. 2006) (holding that weight accorded to documentary

evidence lies largely within agency’s discretion). Moreover, the membership

card was not entitled to great weight because it was issued in New York and

could not corroborate Barry’s mistreatment. See id

.

5Nor did the evidence of general country conditions support Barry’s claim.

Except for the conviction of the former RPG president in 2000, there was no

evidence that the Guinean government targeted the RPG. The 2006 U.S. State

Department Report notes the temporary detention of striking workers, but there

is no specific reference to the RPG, and it states that there were no reports of

political prisoners or politically motivated disappearances. Accordingly, the IJ

reasonably found this evidence insufficient to independently establish Barry’s

eligibility for relief. See Jian Xing Huang v. INS

, 421 F.3d 125, 129 (2d Cir. 2005).

The only evidence of a threat to Barry’s life or freedom was his own

testimony. Given the implausibility and lack of reasonably available evidence,

the totality of the circumstances supports the agency’s adverse credibility

determination. See 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 534

F.3d at 167. The adverse credibility determination in this case necessarily

precludes success on his claims for asylum and withholding of removal. See Paul

v. Gonzales

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

6We have considered all of Barry’s contentions in support of his petition for

review and have found them to be without merit. For the foregoing reasons, the

petition for review is DENIED.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

7