Pursuant to Federal Rule of Appellate Procedure 1

43(c)(2), Attorney General Eric H. Holder Jr. is

automatically substituted for former Attorney General

Michael B. Mukasey as respondent in this case.

07-5775-ag

Djigo v. Holder

BIA

Weisel, IJ

A73 677 556

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

4 New York, on the 16 day of February, two thousand ten. th

5

6 PRESENT:

7 JON O. NEWMAN,

8 ROSEMARY S. POOLER,

9 DEBRA ANN LIVINGSTON,

10 Circuit Judges.

11 _______________________________________

12

13 ABDOUL AZIZ DJIGO,

14 Petitioner,

15

16 v. 07-5775-ag

17 NAC

18 ERIC H. HOLDER JR., ATTORNEY GENERAL,1

19 Respondent.

20 _______________________________________

21

22 FOR PETITIONER: Ronald Salomon, New York, New York.

23

24 FOR RESPONDENT: Gregory G. Katsas, Assistant Attorney

25 General, Leslie McKay, Senior

26 Litigation Counsel, Lindsay B.

27 Glauner, Trial Attorney, Office of

28 Immigration Litigation, Civil

29 Division, United States Department of

30 Justice, Washington, D.C.
2

1 UPON DUE CONSIDERATION of this petition for review of a

2 decision of the Board of Immigration Appeals (“BIA”), it is

3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

4 review is DENIED.

5 Petitioner Abdoul Aziz Djigo, a native and citizen of

6 Mauritania, seeks review of a November 29, 2007 order of the

7 BIA affirming the October 24, 2005 decision of Immigration

8 Judge (“IJ”) Robert Weisel, denying his applications for

9 asylum, withholding of removal, and relief under the

10 Convention Against Torture (“CAT”). In re Abdoul Aziz

11 Djigo, No. A73 677 556 (B.I.A. Nov. 29, 2007), aff’g No. A73

12 677 556 (Immig. Ct. N.Y. City Oct. 24, 2005). We assume the

13 parties’ familiarity with the underlying facts and

14 procedural history of the case.

15 When the BIA summarily affirms the decision of the IJ

16 without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), we

17 review the IJ’s decision as the final agency determination. 

18 See Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008). 

19 We review the agency’s factual findings, including adverse

20 credibility determinations, under the substantial evidence

21 standard. See 8 U.S.C. § 1252(b)(4)(B); see also Corovic v.

22 Mukasey, 519 F.3d 90, 95 (2d Cir. 2008). 
 Djigo challenges the IJ’s adverse credibility 2

finding in his brief to this Court, but did not do so

before the BIA. We nonetheless address the adverse

credibility determination because the government does not

argue that the issue is unexhausted. See Lin Zhong v.

U.S. Dep't of Justice, 461 F.3d 101, 119-20 (2d Cir. 2006)

(holding that exhaustion of issues is waived if not raised

by the government).

3

1 An IJ’s adverse credibility determination must be “based

2 on specific, cogent reasons bearing a legitimate nexus to

3 the determination.” Belortaja v. Gonzales, 484 F.3d 619,

4 626 (2d Cir. 2007). The agency may properly base an adverse

5 credibility determination on inconsistencies that “to the

6 heart” of the applicant’s claim for relief. See Xu Duan

7 Dong v. Ashcroft, 406 F.3d 110, 112 (2d Cir. 2005) (quoting

8 Ramsameachire v. Ashcroft, 357 F.3d 169, 182 (2d Cir.

9 2008)). 

10 Here, the IJ primarily based the adverse credibility

11 finding on two inconsistencies: (1) the inconsistency

12 between Djigo’s testimony that he was beaten and detained in

13 1991 and his concession to testifying at an earlier hearing

14 that the incident occurred in 1989, as was also alleged in

15 his asylum application; and (2) the inconsistency between

16 Djigo’s claim that he was beaten and detained for his

17 membership in the African Liberation Forces of Mauritania

18 (FLAM), and his admission before the IJ that he was not a

19 member of FLAM. The IJ’s findings had a “legitimate nexus” 2
4

1 to Djigo’s claim for relief. Belortaja, 484 F.3d at 626. 

2 The IJ did not err in finding that discrepancies in the

3 record regarding Djigo’s membership in FLAM and the dates of

4 the sole alleged incident of persecution were central to his

5 claim. See Xu Duan Dong, 406 F.3d at 112. Although Djigo

6 explained that the 1989 date was a mistake for which the

7 preparer of the asylum application was responsible, the IJ

8 acted reasonably in rejecting Djigo’s explanations. See

9 Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005). 

10 Because the only evidence of a threat to Djigo’s life or

11 freedom depended upon his credibility, his failure to

12 exhaust precludes success on his claims for asylum,

13 withholding of removal, and CAT relief where all three

14 claims were based on the same factual predicate. See Paul

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

16 For the foregoing reasons, the petition for review is

17 DENIED.

18

19

20 FOR THE COURT:

21 Catherine O’Hagan Wolfe, Clerk

22

23

24