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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 30th 4 day of July, two thousand fourteen.

5

6 PRESENT:

7 JOSÉ A. CABRANES,

8 ROBERT D. SACK,

9 GERARD E. LYNCH,

10 Circuit Judges.

11 _____________________________________

12

13 CHEIK TAHIROU SANOGO, AKA CHEIKTALO

14 SAVADOGO, AKA MAMADOU DIALLO,

15 Petitioner,

16

17 v. 13-2055

18 NAC

19

20 ERIC H. HOLDER, JR., UNITED STATES 

21 ATTORNEY GENERAL,

22 Respondent.

23 _____________________________________

24 

25 FOR PETITIONER: Gary J. Yerman, New York, New York.

26

27 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney

28 General; Linda S. Wernery, Assistant

29 Director; William C. Minick, Trial
1 Attorney, Office of Immigration

2 Litigation, Civil Division, United

3 States Department of Justice,

4 Washington, D.C.

5

6 UPON DUE CONSIDERATION of this petition for review of a

7 Board of Immigration Appeals (“BIA”) decision, it is hereby

8 ORDERED, ADJUDGED, AND DECREED that the petition for review

9 is DENIED.

10 Cheik Tahirou Sanogo, a purported native and citizen of

11 Ivory Coast, seeks review of an April 30, 2013, decision of

12 the BIA affirming the April 20, 2012, decision of an

13 Immigration Judge (“IJ”), pretermitting his asylum

14 application as untimely and denying withholding of removal

15 and relief under the Convention Against Torture (“CAT”). In

16 re Cheik Tahirou Sanogo, No. A088 378 063 (B.I.A. Apr. 30,

17 2013), aff’g No. A088 378 063 (Immig. Ct. N.Y. City Apr. 20,

18 2012). We assume the parties’ familiarity with the

19 underlying facts and procedural history in this case.

20 Under the circumstances of this case, we have reviewed

21 the decision of the IJ as supplemented by the BIA. See Yan

22 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The

23 applicable standards of review are well established. See 8

24 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562

25 F.3d 510, 513 (2d Cir. 2009). 

2
1 I. Asylum 

2 An asylum applicant must demonstrate “by clear and

3 convincing evidence,” that he filed his application within

4 one year after arriving in the United States. 8 U.S.C.

5 § 1158(a)(2)(B). Our jurisdiction to review the agency’s

6 timeliness determination is limited to constitutional claims

7 and questions of law. See 8 U.S.C. §§ 1158(a)(2)(B), (3),

8 1252(a)(2)(D); Dong Zhong Zheng v. Mukasey, 552 F.3d 277,

9 285 (2d Cir. 2009). 

10 The IJ found that Sanogo lacked credibility regarding

11 the date of his last entry to the United States and

12 therefore failed to establish that he timely filed his

13 asylum application. Sanogo challenges the reasonableness of

14 that credibility finding, which is a factual finding we lack

15 jurisdiction to review. See 8 U.S.C. §§ 1158(a)(2)(B), (3),

16 1252(a)(2)(D). Although he also argues that the IJ erred by

17 failing to make a determination of his nationality, a

18 threshold legal question in determining asylum eligibility,

19 see Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir. 2006), the

20 IJ was not required to reach that issue as Sanogo’s failure

21 to timely file was dispositive, see 8 U.S.C.

22 § 1158(a)(2)(B), (3). Accordingly, we deny Sanogo’s

23 petition to the extent it challenges the denial of asylum.

3
1 II. Adverse Credibility Determination 

2 For applications such as Sanogo’s, governed by the REAL

3 ID Act of 2005, the agency may, “[c]onsidering the totality

4 of the circumstances,” base a credibility finding on the

5 applicant’s “demeanor, candor, or responsiveness,” the

6 plausibility of his account, and inconsistencies in his

7 statements, without regard to whether they go “to the heart

8 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii);

9 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008)

10 (per curiam). “We defer therefore to an IJ’s credibility

11 determination unless, from the totality of the

12 circumstances, it is plain that no reasonable fact-finder

13 could make such an adverse credibility ruling.” Xiu Xia

14 Lin, 534 F.3d at 167.

15 The adverse credibility determination here is supported

16 by substantial evidence. The IJ reasonably relied on the

17 following inconsistencies and omissions: (1) Sanogo’s

18 application did not mention his hospital visit upon his

19 release from Ivorian police custody; (2) he testified that

20 he first traveled to Burkina Faso and applied for a U.S.

21 visa upon his release in order to escape further harm, but

22 later conceded he had previously applied for a student visa

4
1 in Burkina Faso in 2003 and 2004; (3) he returned to Ivory

2 Coast in 2006 because he believed “there would be no more

3 problem[s],” but undermined that statement by conceding he

4 had been aware of increased violence against ethnic Dioulas

5 that year and by explaining that his father had been

6 attacked earlier in 2006; (4) he then changed the year of

7 his father’s attack to 2007; and (5) he testified that he

8 gave his attorney the passport he used to enter Ivory Coast,

9 but, when the attorney denied receiving it, said it was

10 stolen during his father’s attack. See 8 U.S.C.

11 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 166. 

12 The adverse credibility determination is further

13 supported by the IJ’s demeanor finding to which we generally

14 defer and of which can be particularly confident because

15 Sanogo’s non-responsive testimony is reflected in the

16 hearing transcript. See Li Hua Lin v. U.S. Dep’t of

17 Justice, 453 F.3d 99, 109 (2d Cir. 2006). 

18 The IJ also properly considered Sanogo’s failure to

19 provide convincing corroborating evidence in finding him not

20 credible. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d

21 Cir. 2007). When an applicant’s testimony has already been

22 called into question, a failure to corroborate may further

5
1 bear on the applicant’s credibility. Id. The IJ reasonably

2 expected evidence that Sanogo was a member of the Rally of

3 the Republicans (“RDR”), participated in protests, sought

4 medical attention after his detention, and returned to the

5 Ivory Coast in 2006. See id. Although Sanogo asserted that

6 his RDR membership papers had been confiscated and that his

7 father, an RDR opponent, refused to obtain replacements, the

8 IJ reasonably rejected this explanation because his father

9 had twice facilitated his travel to the United States and

10 had no reason not to obtain these documents. See Majidi v.

11 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (providing that

12 the agency need not credit an applicant’s explanations

13 unless they would compel a reasonable fact-finder to do so). 

14 The IJ also reasonably rejected Sanogo’s explanation that

15 his passport was stolen from his father because his

16 testimony regarding that attack was inconsistent. See id. 

17 Given these inconsistencies, the omission, the lack of

18 corroboration, and Sanogo’s non-responsive testimony, the

19 totality of the circumstances supports the agency’s adverse

20 credibility determination. See Xiu Xia Lin, 534 F.3d at

21 167; Yanqin Weng, 562 F.3d at 513. The adverse credibility

22 determination necessarily precludes withholding of removal

6
1 and CAT relief to the extent they relied on Sanogo’s RDR

2 membership and claim that his family was attacked. See Paul

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

4 III. Future Harm based on Ethnicity

5 It is unclear whether the IJ found that Sanogo’s lack

6 of credibility also undermined his claim of Dioula

7 ethnicity. The IJ’s adverse credibility determination

8 therefore did not preclude withholding or CAT relief based

9 on that claim. See Paul, 444 F.3d at 156 (requiring a

10 separate analysis of withholding and CAT eligibility when

11 claim is not entirely predicated on testimony deemed not

12 credible). Nevertheless, as the IJ reasonably found, Sanogo

13 failed to establish a likelihood of harm based on his

14 ethnicity, given that his evidence did not address Dioulas

15 specifically, and the 2007, 2008, and 2010 U.S. State

16 Department Human Rights Reports state that the Ivorian

17 government outlawed racism and tribalism and that, with the

18 exception of some violence between other tribes, there is

19 only inter-tribal discrimination. See 8 C.F.R. §§ 1208.16©,

20 1208.17.

21

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

2 DENIED. 

3 FOR THE COURT: 

4 Catherine O’Hagan Wolfe, Clerk

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