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.

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 1st 4 day of July, two thousand eleven.

5

6 PRESENT:

7 JOHN M. WALKER, JR.,

8 PIERRE N. LEVAL,

9 ROSEMARY S. POOLER,

10 Circuit Judges. 

11 _______________________________________

12

13 MOHAMED SESAY,

14 Petitioner, 

15

16 v. 10-857-ag

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL,

20 Respondent.

21 ______________________________________

22

23 FOR PETITIONER: Thomas V. Massucci, New York, New

24 York.

25

26 FOR RESPONDENT: Tony West, Assistant Attorney

27 General; Leslie McKay, Assistant

28 Director; Jason Wisecup, Trial

29 Attorney, Office of Immigration

30 Litigation; Civil Division, U.S.

31 Department of Justice, Washington,

32 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 Mohamed Sesay, a native and citizen of Sierra Leone,

6 seeks review of a February 19, 2010, order of the BIA

7 affirming the May 21, 2008, decision of Immigration Judge

8 (“IJ”) Brigitte LaForest denying Sesay’s application for

9 withholding of removal and relief under the Convention

10 Against Torture (“CAT”). In re Mohamed Sesay, No. A095 405

11 335 (B.I.A. Feb. 19, 2010), aff’g No. A095 405 335 (Immig.

12 Ct. N.Y. City May 21, 2008). We assume the parties’

13 familiarity with the underlying facts and procedural history

14 of the case.

15 Under the circumstances of this case, we review the

16 IJ’s decision as the final agency determination. See Mei

17 Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 523 (2d Cir.

18 2007). The agency’s factual findings, including adverse

19 credibility determinations, are reviewed under the

20 substantial evidence standard. See Corovic v. Mukasey, 519

21 F.3d 90, 95 (2d Cir. 2008). Questions of law, and the

22 application of law to undisputed facts, are reviewed de
3

1 novo. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.

2 2008). 

3 Substantial evidence supports the IJ’s adverse

4 credibility determination. We will not disturb adverse

5 credibility determinations when they are based on “specific

6 examples in the record of inconsistent statements . . .

7 about matters material to [an applicant’s] claim of

8 persecution, or on contradictory evidence or inherently

9 improbable testimony regarding such matters.” Zhou Yun

10 Zhang v. INS, 386 F.3d 66, 74 (2d Cir. 2004) (internal

11 quotation marks omitted), overruled in part on other grounds

12 by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305

13 (2d Cir. 2007). In making the adverse credibility

14 determination in this case, the IJ found Sesay not credible

15 because of inconsistencies between his testimony and his

16 statements in his amended asylum application regarding: (1)

17 the length of time his father was missing after the rebels

18 kidnaped him; (2) when his legs were burned during a rebel

19 attack; and (3) when he left Sierra Leone. As the IJ

20 pointed out specific inconsistencies related to the rebel

21 attacks on Sesay’s family, there is no basis for reversal of

22 the adverse credibility determination. See Zhou Yun Zhang,
4

1 386 F.3d at 74; Secaida-Rosales v. INS, 331 F.3d 297, 307

2 (2d Cir. 2003) (providing that an adverse credibility

3 determination must be based on “specific, cogent reasons”

4 that “bear a legitimate nexus” to the finding); Tu Lin v.

5 Gonzales, 446 F.3d 395, 402 (2d Cir. 2006) (“even where an

6 IJ relies on discrepancies or lacunae that, if taken

7 separately, concern matters collateral or ancillary to the

8 claim, . . . the cumulative effect may nevertheless be

9 deemed consequential by the fact-finder” (internal citations

10 omitted)). We further find no error in the IJ’s refusal to

11 credit Sesay’s explanations for the inconsistencies, as his

12 explanations do not compel a finding of credibility. See

13 Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005); 8

14 C.F.R. § 1208.3(c)(2) (providing a rebuttable presumption

15 that an asylum applicant is aware of the contents of the

16 application at the time it is filed).

17 Because Sesay’s withholding of removal and CAT claims

18 share the same factual predicate, the IJ’s adverse

19 credibility determination precludes either form of relief. 

20 See Paul v. Gonzales, 444 F.3d 148, 157 (2d Cir. 2006). 

21 Because the adverse credibility determination is

22 dispositive, we do not reach the agency’s alternate burden

23 of proof findings.
5

1 For the foregoing reasons, the petition for review is

2 DENIED. As we have completed our review, the pending motion

3 for a stay of removal in this petition is DISMISSED as moot. 

4 FOR THE COURT:

5 Catherine O’Hagan Wolfe, Clerk

6