10-857-ag Sesay v. Holder BIA LaForest, IJ A095 405 335 

### 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**  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 1 st** **day of July, two thousand eleven.** 4 5 **PRESENT:** 6 **JOHN M. WALKER, JR.,** 7 **PIERRE N. LEVAL,** 8 **ROSEMARY S. POOLER,** 9 Circuit Judges**.** 10

**_______________________________________** 11 12 **MOHAMED SESAY,** 13 Petitioner**,** 14 15 **v. 10-857-ag** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**______________________________________** 21 22 **FOR PETITIONER: Thomas V. Massucci, New York, New** 23 **York.** 24 25 **FOR RESPONDENT: Tony West, Assistant Attorney** 26 **General; Leslie McKay, Assistant** 27 **Director; Jason Wisecup, Trial** 28 **Attorney, Office of Immigration** 29 **Litigation; Civil Division, U.S.** 30 **Department of Justice, Washington,** 31 **D.C.** 322 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 Mohamed Sesay, a native and citizen of Sierra Leone, 5 seeks review of a February 19, 2010, order of the BIA 6 affirming the May 21, 2008, decision of Immigration Judge 7 (“IJ”) Brigitte LaForest denying Sesay’s application for 8 withholding of removal and relief under the Convention 9 Against Torture (“CAT”). In re Mohamed Sesay, No. A095 405 10 335 (B.I.A. Feb. 19, 2010), aff’g No. A095 405 335 (Immig. 11 Ct. N.Y. City May 21, 2008). We assume the parties’ 12 familiarity with the underlying facts and procedural history 13 of the case. 14 Under the circumstances of this case, we review the 15 IJ’s decision as the final agency determination. See Mei 16 Chai Ye v. U.S. Dep’t of Justice , 489 F.3d 517, 523 (2d Cir. 17 2007). The agency’s factual findings, including adverse 18 credibility determinations, are reviewed under the 19 substantial evidence standard. See Corovic v. Mukasey, 519 20 F.3d 90, 95 (2d Cir. 2008). Questions of law, and the 21 application of law to undisputed facts, are reviewed de 223 novo. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 1 2008). 2 Substantial evidence supports the IJ’s adverse 3 credibility determination. We will not disturb adverse 4 credibility determinations when they are based on “specific 5 examples in the record of inconsistent statements . . . 6 about matters material to [an applicant’s] claim of 7 persecution, or on contradictory evidence or inherently 8 improbable testimony regarding such matters.” Zhou Yun 9 Zhang v. INS, 386 F.3d 66, 74 (2d Cir. 2004) (internal 10 quotation marks omitted), overruled in part on other grounds 11 by Shi Liang Lin v. U.S. Dep’t of Justice , 494 F.3d 296, 305 12 (2d Cir. 2007). In making the adverse credibility 13 determination in this case, the IJ found Sesay not credible 14 because of inconsistencies between his testimony and his 15 statements in his amended asylum application regarding: (1) 16 the length of time his father was missing after the rebels 17 kidnaped him; (2) when his legs were burned during a rebel 18 attack; and (3) when he left Sierra Leone. As the IJ 19 pointed out specific inconsistencies related to the rebel 20 attacks on Sesay’s family, there is no basis for reversal of 21 the adverse credibility determination. See Zhou Yun Zhang, 224 386 F.3d at 74;Secaida-Rosales v. INS , 331 F.3d 297, 307 1 (2d Cir. 2003) (providing that an adverse credibility 2 determination must be based on “specific, cogent reasons” 3 that “bear a legitimate nexus” to the finding);Tu Lin v. 4 Gonzales , 446 F.3d 395, 402 (2d Cir. 2006) (“even where an 5 IJ relies on discrepancies or lacunae that, if taken 6 separately, concern matters collateral or ancillary to the 7 claim, . . . the cumulative effect may nevertheless be 8 deemed consequential by the fact-finder” (internal citations 9 omitted)). We further find no error in the IJ’s refusal to 10 credit Sesay’s explanations for the inconsistencies, as his 11 explanations do not compel a finding of credibility. See 12 Majidi v. Gonzales , 430 F.3d 77, 80-81 (2d Cir. 2005); 8 13 C.F.R. § 1208.3(c)(2) (providing a rebuttable presumption 14 that an asylum applicant is aware of the contents of the 15 application at the time it is filed). 16 Because Sesay’s withholding of removal and CAT claims 17 share the same factual predicate, the IJ’s adverse 18 credibility determination precludes either form of relief. 19 See Paul v. Gonzales , 444 F.3d 148, 157 (2d Cir. 2006). 20 Because the adverse credibility determination is 21 dispositive, we do not reach the agency’s alternate burden 22 of proof findings. 235 For the foregoing reasons, the petition for review is 1 DENIED. As we have completed our review, the pending motion 2 for a stay of removal in this petition is DISMISSED as moot. 3

FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk 5

6