11-932-ag Moore v. Holder BIA Montate, IJ A029 749 3343 

### 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 23 rd** **day of February, two thousand twelve.** 4 5 **PRESENT:** 6 **JOSÉ A. CABRANES,** 7 **DEBRA ANN LIVINGSTON,** 8 **DENNY CHIN,** 9 Circuit Judges **.** 10

**_____________________________________** 11 12 **JOSEPH TAMBA MOORE,** 13 Petitioner**,** 14 15 **v. 11-932-ag** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER: Joseph Tamba Moore,** pro se**,** 23 **Rochester, New York.** 24 25 **FOR RESPONDENT: Tony West, Assistant Attorney** 26 **General; Francis W. Fraser, Senior** 27 **Litigation Counsel; Linda Y. Cheng,** 28 **Trial Attorney, Office of** 29 **Immigration Litigation, United** 30 **States Department of Justice,** 31 **Washington, 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 Joseph Tamba Moore, a native and citizen of Liberia, 5 seeks review of a February 10, 2011, order of the BIA 6 affirming the April 21, 2009, decision of an Immigration 7 Judge (“IJ”), which denied his applications for asylum and 8 withholding of removal. In re Moore , No. A029 749 343 9 (B.I.A. Feb. 10, 2011), aff’gNo. A029 749 343 (Immig. Ct. 10 Buffalo Apr. 21, 2009). We assume the parties’ familiarity 11 with the underlying facts and procedural history in this 12

case. 13 Under the circumstances of this case, we have reviewed 14 the IJ’s decision as modified by the BIA, considering all 15 grounds for the IJ’s adverse credibility determination, see 16 Yun-Zui Guan v. Gonzales , 432 F.3d 391, 394 (2d Cir. 2005), 17 but not the alternate findings that the BIA did not review, 18 see Xue Hong Yang v. U.S. Dep’t of Justice , 426 F.3d 520, 19 522 (2d Cir. 2005). The applicable standards of review are 20 well-established. See 8 U.S.C. § 1252(b)(4)(B); see also 21 Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008). We deny 22 the petition for review, as the agency’s adverse credibility 23 determination is supported by substantial evidence. 24*In Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008), we recognized that the Real ID Act abrogated in part the holding in Secaida-Rosalesfor cases filed after May 11, 2005, the effective date of the Act. Id. Because Moore’s initial application was filed before this date, Secaida-Rosalesremains good law. See Dong Zhong Zheng v. Mukasey, 552 F.3d 277, 287 n.6 (2d Cir. 2009). 3 In finding Moore not credible, the agency reasonably 1 relied on inconsistencies between his hearing testimony and 2 his written asylum applications, and on lack of detail in 3 his hearing testimony. See Secaida-Rosales v. INS , 331 F.3d 4 297, 308-09 (2d Cir. 2003). *For example, although Moore 5 testified before the IJ that rebels kidnapped him in 1987 6 and killed his brother and daughter in 1990, he made no such 7 claims in his written applications. Moreover, he did not 8 testify at the merits hearing that he feared persecution 9 because of his tribal affiliation, even though that was the 10 primary argument in his initial written application. 11 Because these inconsistencies go to the heart of Moore’s 12 persecution claims, and were “substantial” when measured 13 against the record as a whole, the agency did not err in 14 relying on the inconsistencies to find him not credible. 15 See Secaida-Rosales , 331 F.3d at 308-09. Furthermore, Moore 16 testified at his hearing that his family members were 17 threatened, but he was unable to provide detail, even when 184 asked. See Jin Shui Qiu v. Ashcroft , 329 F.3d 140, 152 (2d 1 Cir. 2003) (“spare” testimony can support adverse 2 credibility finding where attempt was made to elicit 3 detail). 4 Although Moore broadly argues that this Court should 5 excuse these inconsistencies and omissions because of his 6 stroke, he has provided no evidence that he had a stroke, 7 let alone evidence of when the stroke occurred or how it 8 affects his memory. Therefore, the IJ was not compelled to 9 accept the explanation, see Majidi v. Gonzales , 430 F.3d 77, 10 81 (2d Cir. 2005), and Moore has not negated the substantial 11 evidence that supports the IJ’s adverse credibility 12 determination, see Diallo v. BIA , 548 F.3d 232, 234 (2d Cir. 13 2008). 14 Additionally, the IJ did not err in refusing to admit 15 the untimely-filed copy of Moore’s daughter’s death 16 certificate into evidence. “[A]n IJ has broad discretion to 17 set and extend filing deadlines pursuant to 8 C.F.R. 18 § 1003.31.” Dedji v. Mukasey, 525 F.3d 187, 191 (2d Cir. 19 2008). Moore, who was represented by counsel in the 20 proceedings before the IJ, has never argued that he was 21 unaware of the IJ’s deadline for the filing of exhibits. 22 Moreover, Moore did not provide good cause to excuse the 235 untimely filing, since he admittedly requested the document 1 only one month before the merits hearing, even though he 2 received the Notice to Appear in 2007, and has conceded that 3 he knew it would be difficult to obtain documents from 4 Liberia. 5 Since the only evidence of a threat to Moore’s life or 6 freedom depended upon his credibility, the adverse 7 credibility determination in this case necessarily precludes 8 success on both his claims for asylum and withholding of 9 removal. See Paul v. Gonzales , 444 F.3d 148, 156 (2d Cir. 10 2006). 11 For the foregoing reasons, the petition for review is 12 DENIED. As we have completed our review, any stay of 13 removal that the Court previously granted in this petition 14 is VACATED, and any pending motion for a stay of removal in 15 this petition is DISMISSED as moot. Any pending request for 16 oral argument in this petition is DENIED in accordance with 17 Federal Rule of Appellate Procedure 34(a)(2), and Second 18 Circuit Local Rule 34.1(b). 19

FOR THE COURT: 20 Catherine O’Hagan Wolfe, Clerk 21 22 23