2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-20-2012

Ly v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-3692

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"Ly v. Atty Gen USA" (2012). 2012 Decisions. Paper 846.

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1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-3692

___________

IBRAHIMA LY,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A094-221-860)

Immigration Judge: Honorable Dorothy Harbeck

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

June 18, 2012

Before: SLOVITER, SMITH AND COWEN, Circuit Judges

(Opinion filed: June 20, 2012)

_________

OPINION

_________

PER CURIAM

The pro se petitioner, Ibrahima Ly, asks us to reverse an order of the Board of 

Immigration Appeals (BIA) that rejected his application for asylum and derivative relief. 

For the following reasons, we will deny his petition for review of the agency’s decision.
2

Ly is a native and citizen of the Republic of Guinea who arrived in the United 

States in 2008; having overstayed his business visa, he was placed into removal 

proceedings. Ly applied for asylum, withholding of removal, and protection under the 

United Nations Convention Against Torture (CAT), arguing that he had been mistreated 

in Guinea on account of his political activity, and specifically for his membership in the 

Union for Progress and Renewal (UPR) political party. According to his asylum 

application, Ly had become convinced that “the military dominated government of 

President Conte was a disaster for Guinea.” Believing that the UPR was a force for

positive change, Ly started helping the party “near the end of 2003 by importing T shirts 

with photos of the party leader and party logo on them.” Administrative Record (A.R.) 

252. Tragedy struck when his father, who was also a UPR member, was shot and killed 

by a government soldier while striking in 2007. Id. Later, Ly participated in an antigovernment meeting that was raided by the military; he was eventually apprehended and 

was imprisoned for around four months, during which period he was interrogated, beaten, 

and otherwise abused. A.R. 253. After obtaining “unofficial” release from custody by 

having his family bribe prison officials, Ly “made plans to save money and to get a visa 

from the U.S. Embassy to come to the United States,” successfully doing so in 2008. 

Ly acknowledged that a recent coup in Guinea had affected the power structure that he 

feared, but insisted that “the current military leaders are just as bad or worse than 

President Conte,” reaffirming that his life would “be in danger” if he returned to Guinea. 

Id.

Id. In support of his application, Ly submitted, among other materials, a letter from his 

wife (A.R. 201) and a certification of his involvement with the UPR (A.R. 198).
3

Following the close of testimony, relief was denied by an Immigration Judge (IJ), 

who found Ly to be lacking in credibility and his evidentiary proffer to be without 

sufficient corroboration. Of particular significance to the IJ’s credibility decision was the 

fact that neither Ly’s asylum application nor his wife’s letter related that soldiers were 

still actively looking for him, whereas Ly had testified at his merits hearing that he was 

still under active scrutiny for his anti-government activities and that his wife had been 

harassed by the military. See A.R. 94–95; see also

Now proceeding without counsel, Ly timely petitions for review of the BIA’s 

decision. The Government urges us to uphold the agency’s determination.

A.R. 140, 152 (testimony). On 

appeal, the BIA upheld the adverse credibility and corroboration determinations, and 

although it narrowed slightly the basis of the former, it echoed the IJ’s concern that Ly’s 

written submissions “did not indicate that the military had continued to search for him” 

after his departure. A.R. 3. The BIA also noted that Ly had waived his CAT claims by 

failing to argue them on appeal. A.R. 5. 

Pursuant to 8 U.S.C. § 1252(a)(1), we have jurisdiction over final agency orders of 

removal. Vera v. Att’y Gen., 672 F.3d 187, 192 (3d Cir. 2012); see also Gomez-Zuluaga 

v. Att’y Gen., 527 F.3d 330, 340–46 (3d Cir. 2008) (discussing substantive asylum 

standard). When, as here, “the BIA both adopts the findings of the IJ and discusses some 

of the bases for the IJ’s decision, we have authority to review the decisions of both the IJ 

and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). The factual 

determinations of both opinions are evaluated under the same “substantial evidence” 

standard, a deferential mode of review in which the agency’s findings of fact are 
4

conclusive unless a reasonable adjudicator would be compelled to conclude to the 

contrary. Yusupov v. Att’y Gen., 650 F.3d 968, 977 (3d Cir. 2011) (citing cases); see 

also Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir. 2003) (“Adverse credibility 

determinations are factual findings subject to substantial evidence review.”). “Where the 

record supports plausible but conflicting inferences in an immigration case, the . . . choice 

between those inferences is, a fortiori, supported by substantial evidence.” De Hincapie 

v. Gonzales

Salient to our decision is the operation of the REAL ID Act, Pub. L. No. 109-13, 

119 Stat. 231, 302 (2005), which applies because Ly first filed his asylum application 

after the Act’s effective date of May 11, 2005. 

, 494 F.3d 213, 219 (1st Cir. 2007). 

See Dong v. Att’y Gen., 638 F.3d 223, 

229 n.3 (3d Cir. 2011). The Act affected the processes of determining credibility and 

requesting corroboration. See Guta-Tolossa v. Holder, 674 F.3d 57, 62 (1st Cir. 2012)

(citing 8 U.S.C. § 1158(b)(1)(B)(ii)). In assessing credibility, the agency must evaluate 

(among other factors) the alien’s “demeanor, candor, or responsiveness,” the “inherent 

plausibility” of his account, the “consistency between [his] written and oral statements” 

(accounting for “the circumstances under which the statements were made”), and the 

internal consistency of his statements and their relationship to other evidence in the 

record, “without regard to whether an inconsistency, inaccuracy, or falsehood goes to the 

heart of [his] claim.” 8 U.S.C. § 1158(b)(1)(B)(iii) (emphasis added). The presence of a 

single identified ground can suffice to support an adverse credibility determination. Rizk 

v. Holder, 629 F.3d 1083, 1087 (9th Cir. 2011) (quoting Wang v. INS, 352 F.3d 1250, 

1259 (9th Cir. 2003)).
5

Having conducted a thorough review of the administrative record, we agree with 

the Government that the omission from Ly’s written submissions of the Guinean 

military’s continued interest in pursuing him, as well as his failure to address the 

military’s active harassment of his wife, constitutes “substantial evidence” in support of 

the adverse credibility determination. This gap went to the heart of his claim; ongoing

military scrutiny would be extraordinarily relevant to the discussion and analysis of the 

likelihood of future persecution, as it would serve to reinforce his otherwise-generalized 

fear of remaining in Guinea (and his associated “certain[ty] that [his] life w[ould] be in 

danger if [he] return[ed] to Guinea”, A.R. 253).1

As the Government observes, such an omission need not doom Ly’s credibility or 

his asylum application as a whole, and it was not emphasized as a potential and 

problematic discontinuity during his main merits hearing. 

 His wife, meanwhile, couched her fear 

of remaining in the familial home in a conditional tense. She did not relate that she had 

been actually harassed by soldiers, or that the military was looking for Ly, but rather that 

she was concerned about the possibility of becoming “a victim of sexual or physical 

harassment” if she remained in the familial home. A.R. 201.

See Kin v. Holder

 1 The Administrative Record reveals that the other persons who submitted affidavits on Ly’s 

behalf also discussed his fear of returning to Guinea in speculative terms. See, e.g., A.R. 198 

(affirming that Ly “will face further persecution from the New Military Junta . . . because of his 

opposition to a military government”). 

, 595 F.3d 

1050, 1056–57 (9th Cir. 2010) (observing that “[o]missions [from asylum applications] 

are not given much significance because applicants usually do not speak English and are 

not represented by counsel”; in addition, aliens should be “afforded the opportunity to 
6

explain inconsistencies within their own personal testimony because the true story may 

get lost in translation”); but see id. at 1057 (“When inconsistencies exist between the 

testimony of multiple witnesses and documentary evidence, however, it is not a matter of 

a communication problem requiring clarification, but of determining how the evidence 

fits together.”). Yet while Ly has attacked several of the other findings used to support 

the adverse credibility determination, he has not satisfactorily addressed this particular 

inconsistency in either his agency appellate documents or in his brief before this Court. 

See, e.g., A.R. 64–65 (discussing “escape” ambiguity, wife’s concern for her safety, and 

general fear of returning to Guinea); A.R. 13 (counsel: “While I cannot say for certain, I 

would imagine that his wife was afraid of the soldiers who were coming to her home, 

since prior to the departure of her husband she did not express any fear of remaining in 

her home.”) (emphasis added). See generally Pet’r’s Br. Accordingly, this omission was 

sufficient to support an adverse credibility determination, which (in turn) did justify the 

denial of asylum and derivative relief.2

Thus, for the foregoing reasons, Ly’s petition for review will be denied. 

 

 2 Because we so hold, we need not address the “intuitively related, [but] distinct” concept of 

corroboration. Toure v. Att’y Gen., 443 F.3d 310, 323 (3d Cir. 2006). While the IJ’s 

corroboration and credibility inquiries were somewhat intertwined, she did not find that Ly was 

incredible because of his failure to corroborate, but rather because the material he used to 

corroborate his application further exacerbated an important omission.