13-2055 Sanogo v. Holder BIA Sichel, IJ A088 378 063 

### 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 Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 30 th** **day of July, two thousand fourteen.** 4 5 **PRESENT:** 6 **JOSÉ A. CABRANES,** 7 **ROBERT D. SACK,** 8 **GERARD E. LYNCH,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **CHEIK TAHIROU SANOGO, AKA CHEIKTALO** 13 **SAVADOGO, AKA MAMADOU DIALLO,** 14 Petitioner**,** 15 16 **v. 13-2055** 17 **NAC** 18 19 **ERIC H. HOLDER, JR., UNITED STATES** 20 **ATTORNEY GENERAL,** 21 Respondent **.** 22

**_____________________________________** 23 24 **FOR PETITIONER: Gary J. Yerman, New York, New York.** 25 26 **FOR RESPONDENT: Stuart F. Delery, Assistant Attorney** 27 **General; Linda S. Wernery, Assistant** 28 **Director; William C. Minick, Trial** 29**Attorney, Office of Immigration** 1 **Litigation, Civil Division, United** 2 **States Department of Justice,** 3 **Washington, D.C.** 4 5 UPON DUE CONSIDERATION of this petition for review of a 6 Board of Immigration Appeals (“BIA”) decision, it is hereby 7 ORDERED, ADJUDGED, AND DECREED that the petition for review 8 is DENIED. 9 Cheik Tahirou Sanogo, a purported native and citizen of 10 Ivory Coast, seeks review of an April 30, 2013, decision of 11 the BIA affirming the April 20, 2012, decision of an 12 Immigration Judge (“IJ”), pretermitting his asylum 13 application as untimely and denying withholding of removal 14 and relief under the Convention Against Torture (“CAT”). In 15 re Cheik Tahirou Sanogo , No. A088 378 063 (B.I.A. Apr. 30, 16 2013),aff’gNo. A088 378 063 (Immig. Ct. N.Y. City Apr. 20, 17 2012). We assume the parties’ familiarity with the 18 underlying facts and procedural history in this case. 19 Under the circumstances of this case, we have reviewed 20 the decision of the IJ as supplemented by the BIA. See Yan 21 Chen v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). The 22 applicable standards of review are well established. See8 23 U.S.C. § 1252(b)(4)(B);see also Yanqin Weng v. Holder, 562 24 F.3d 510, 513 (2d Cir. 2009). 25

2**I. Asylum** 1 An asylum applicant must demonstrate “by clear and 2 convincing evidence,” that he filed his application within 3 one year after arriving in the United States. 8 U.S.C. 4 § 1158(a)(2)(B). Our jurisdiction to review the agency’s 5 timeliness determination is limited to constitutional claims 6 and questions of law. See 8 U.S.C. §§ 1158(a)(2)(B), (3), 7 1252(a)(2)(D); Dong Zhong Zheng v. Mukasey, 552 F.3d 277, 8 285 (2d Cir. 2009). 9 The IJ found that Sanogo lacked credibility regarding 10 the date of his last entry to the United States and 11 therefore failed to establish that he timely filed his 12 asylum application. Sanogo challenges the reasonableness of 13 that credibility finding, which is a factual finding we lack 14 jurisdiction to review. See 8 U.S.C. §§ 1158(a)(2)(B), (3), 15 1252(a)(2)(D). Although he also argues that the IJ erred by 16 failing to make a determination of his nationality, a 17 threshold legal question in determining asylum eligibility, 18 see Wangchuck v. DHS , 448 F.3d 524, 528 (2d Cir. 2006), the 19 IJ was not required to reach that issue as Sanogo’s failure 20 to timely file was dispositive, see8 U.S.C. 21 § 1158(a)(2)(B), (3). Accordingly, we deny Sanogo’s 22 petition to the extent it challenges the denial of asylum. 23
3**II. Adverse Credibility Determination** 1 For applications such as Sanogo’s, governed by the REAL 2 ID Act of 2005, the agency may, “[c]onsidering the totality 3 of the circumstances,” base a credibility finding on the 4 applicant’s “demeanor, candor, or responsiveness,” the 5 plausibility of his account, and inconsistencies in his 6 statements, without regard to whether they go “to the heart 7 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); 8 Xiu Xia Lin v. Mukasey,534 F.3d 162, 167 (2d Cir. 2008) 9 (per curiam). “We defer therefore to an IJ’s credibility 10 determination unless, from the totality of the 11 circumstances, it is plain that no reasonable fact-finder 12 could make such an adverse credibility ruling.” Xiu Xia 13 Lin , 534 F.3d at 167. 14 The adverse credibility determination here is supported 15 by substantial evidence. The IJ reasonably relied on the 16 following inconsistencies and omissions: (1) Sanogo’s 17 application did not mention his hospital visit upon his 18 release from Ivorian police custody; (2) he testified that 19 he first traveled to Burkina Faso and applied for a U.S. 20 visa upon his release in order to escape further harm, but 21 later conceded he had previously applied for a student visa 22

4in Burkina Faso in 2003 and 2004; (3) he returned to Ivory 1 Coast in 2006 because he believed “there would be no more 2 problem[s],” but undermined that statement by conceding he 3 had been aware of increased violence against ethnic Dioulas 4 that year and by explaining that his father had been 5 attacked earlier in 2006; (4) he then changed the year of 6 his father’s attack to 2007; and (5) he testified that he 7 gave his attorney the passport he used to enter Ivory Coast, 8 but, when the attorney denied receiving it, said it was 9 stolen during his father’s attack. See 8 U.S.C. 10 § 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 F.3d at 166. 11 The adverse credibility determination is further 12 supported by the IJ’s demeanor finding to which we generally 13 defer and of which can be particularly confident because 14 Sanogo’s non-responsive testimony is reflected in the 15 hearing transcript. See Li Hua Lin v. U.S. Dep’t of 16 Justice , 453 F.3d 99, 109 (2d Cir. 2006). 17 The IJ also properly considered Sanogo’s failure to 18 provide convincing corroborating evidence in finding him not 19 credible. See Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d 20 Cir. 2007). When an applicant’s testimony has already been 21 called into question, a failure to corroborate may further 22

5bear on the applicant’s credibility. Id.The IJ reasonably 1 expected evidence that Sanogo was a member of the Rally of 2 the Republicans (“RDR”), participated in protests, sought 3 medical attention after his detention, and returned to the 4 Ivory Coast in 2006. See id. Although Sanogo asserted that 5 his RDR membership papers had been confiscated and that his 6 father, an RDR opponent, refused to obtain replacements, the 7 IJ reasonably rejected this explanation because his father 8 had twice facilitated his travel to the United States and 9 had no reason not to obtain these documents. See Majidi v. 10 Gonzales , 430 F.3d 77, 80-81 (2d Cir. 2005) (providing that 11 the agency need not credit an applicant’s explanations 12 unless they would compel a reasonable fact-finder to do so). 13 The IJ also reasonably rejected Sanogo’s explanation that 14 his passport was stolen from his father because his 15 testimony regarding that attack was inconsistent. See id. 16 Given these inconsistencies, the omission, the lack of 17 corroboration, and Sanogo’s non-responsive testimony, the 18 totality of the circumstances supports the agency’s adverse 19 credibility determination. See Xiu Xia Lin , 534 F.3d at 20 167; Yanqin Weng, 562 F.3d at 513. The adverse credibility 21 determination necessarily precludes withholding of removal 22

6and CAT relief to the extent they relied on Sanogo’s RDR 1 membership and claim that his family was attacked. See Paul 2 v. Gonzales , 444 F.3d 148, 156 (2d Cir. 2006). 3 **III. Future Harm based on Ethnicity** 4 It is unclear whether the IJ found that Sanogo’s lack 5 of credibility also undermined his claim of Dioula 6 ethnicity. The IJ’s adverse credibility determination 7 therefore did not preclude withholding or CAT relief based 8 on that claim. See Paul , 444 F.3d at 156 (requiring a 9 separate analysis of withholding and CAT eligibility when 10 claim is not entirely predicated on testimony deemed not 11 credible). Nevertheless, as the IJ reasonably found, Sanogo 12 failed to establish a likelihood of harm based on his 13 ethnicity, given that his evidence did not address Dioulas 14 specifically, and the 2007, 2008, and 2010 U.S. State 15 Department Human Rights Reports state that the Ivorian 16 government outlawed racism and tribalism and that, with the 17 exception of some violence between other tribes, there is 18 only inter-tribal discrimination. See 8 C.F.R. §§ 1208.16©, 19 1208.17. 20

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7For the foregoing reasons, the petition for review is 1

DENIED. 2
FOR THE COURT: 3 Catherine O’Hagan Wolfe, Clerk 4 5 6 7

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