19-3629

Abaserbi v. Garland

BIA

Wright, IJ

A205 789 139 

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 TO 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 

3 United States Courthouse, 40 Foley Square, in the City of 

New York, on the 23rd 4 day of February, two thousand twenty5 two.

6

7 PRESENT:

8 GERARD E. LYNCH,

9 JOSEPH F. BIANCO,

10 BETH ROBINSON,

11 Circuit Judges.

12 _____________________________________

13

14 SADAM USMAN ABASERBI,

15 Petitioner,

16

17 v. 19-3629

18 NAC

19 MERRICK B. GARLAND, UNITED 

20 STATES ATTORNEY GENERAL,

21 Respondent.

22 _____________________________________

23

24 FOR PETITIONER: Stanley A. Cohen, Esq., 

25 New York, NY.

26

27 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 

28 Assistant Attorney General; Zoe J. 
2

1 Heller, Senior Litigation Counsel; 

2 Katherine A. Smith, Trial 

3 Attorney, Office of Immigration 

4 Litigation, United States 

5 Department of Justice, Washington, 

6 DC.

7 UPON DUE CONSIDERATION of this petition for review of a 

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

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

10 is DENIED.

11 Petitioner Sadam Usman Abaserbi, a native and citizen of

12 Ethiopia, seeks review of a September 30, 2019, decision of 

13 the BIA affirming a February 8, 2018, decision of an 

14 Immigration Judge (“IJ”) denying asylum, withholding of 

15 removal, and protection under the Convention Against Torture 

16 (“CAT”). In re Sadam Usman Abaserbi, No. A 205 789 139

17 (B.I.A. Sept. 30, 2019), aff’g No. A 205 789 139 (Immig. Ct. 

18 N.Y. City Feb. 8, 2018). We assume the parties’ familiarity 

19 with the underlying facts and procedural history.

20 We have considered both the IJ’s and the BIA’s opinions 

21 “for the sake of completeness.” Wangchuck v. Dep’t of 

22 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review 

23 adverse credibility determinations for substantial evidence, 

24 Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018), and 
3

1 treat the agency’s findings of fact as “conclusive unless any 

2 reasonable adjudicator would be compelled to conclude to the 

3 contrary,” 8 U.S.C. § 1252(b)(4)(B). 

4 An asylum applicant, like Abaserbi, who does not allege 

5 past persecution, has the burden to demonstrate an

6 objectively reasonable fear of future persecution. See 

7 8 U.S.C. § 1158(b)(1)(B)(i); 8 C.F.R. § 1208.13(a), (b)(1) & 

8 (2); Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 

9 2004) (requiring applicant to “present credible testimony 

10 that he subjectively fears persecution and establish that his 

11 fear is objectively reasonable”). As the governing statute 

12 provides:

13 The testimony of the applicant may be sufficient to 

14 sustain the applicant’s burden without 

15 corroboration, but only if . . . the applicant’s 

16 testimony is credible, is persuasive, and refers to 

17 specific facts sufficient to demonstrate that the 

18 applicant is a refugee. In determining whether the 

19 applicant has met the . . . burden, the trier of 

20 fact may weigh the credible testimony along with 

21 other evidence of record. Where the trier of fact 

22 determines that the applicant should provide 

23 evidence that corroborates otherwise credible 

24 testimony, such evidence must be provided unless the 

25 applicant does not have the evidence and cannot 

26 reasonably obtain the evidence.

27

28 8 U.S.C. § 1158(b)(B)(ii).

29 We find no error in the agency’s conclusion that Abaserbi 
4

1 did not meet his burden of proof. The agency did not err in 

2 relying on an inconsistency to find Abaserbi not credible, 

3 because “a trier of fact may base a credibility determination 

4 on” inconsistencies within and between an applicant’s 

5 “written and oral statements (whenever made and whether or 

6 not under oath and considering the circumstances under which 

7 the statements were made).” Id. § 1158(b)(1)(B)(iii). 

8 Abaserbi was inconsistent about the circumstances of his

9 father’s arrest, testifying before the IJ that he was present 

10 when the police took his father from the family’s home, which 

11 conflicted with his prior credible fear interview statement

12 that he “was not there when [his father] was arrested,” that 

13 his father was “taken from the neighborhood,” and that he did 

14 not know the circumstances. CAR 394-95. Because his father’s 

15 alleged arrest for suspected involvement in collecting money 

16 for the Oromo Liberation Front was the basis of Abaserbi’s 

17 own fear of persecution should he be returned to Ethiopia, 

18 the inconsistency constitutes substantial evidence for the

19 agency’s adverse credibility ruling. See Likai Gao v. Barr, 

20 968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[T]his Court [has]

21 recognized that even a single inconsistency might preclude an 
5

1 alien from showing that an IJ was compelled to find him 

2 credible.”). Given Abaserbi’s concession that he understood 

3 the questions at the interview, even though the interview was 

4 not conducted in his native language, and the fact that the 

5 interview record reflects that he was responsive to the 

6 questions asked, the agency did not err in deeming the 

7 interview record reliable. See Ming Zhang v. Holder, 585 

8 F.3d 719, 725–26 (2d Cir. 2009) (discussing indicia of 

9 reliability).

10 The agency also did not err in requiring additional 

11 corroboration for Abaserbi’s claim. See 8 U.S.C. 

12 § 1158(b)(1)(B)(ii) (allowing IJ to require corroboration of 

13 even credible testimony); Wei Sun v. Session, 883 F.3d 23, 

14 28–29 (2d Cir. 2018). Abaserbi alleged that the Ethiopian 

15 authorities continued to seek him out but did not submit a

16 recent letter from his mother to confirm that fact or provide 

17 a letter from his brother to document his brother’s alleged 

18 problems with authorities stemming from his Oromo ethnicity. 

19 Given Abaserbi’s ability to obtain other documents from 

20 Ethiopia, the record does not compel a conclusion that such 

21 letters were unavailable. See 8 U.S.C. § 1252(b)(4) (“No 
6

1 court shall reverse a determination made by a trier of fact 

2 with respect to the availability of corroborating evidence

3 . . . unless the court finds . . . that a reasonable trier of 

4 fact is compelled to conclude that such corroborating 

5 evidence is unavailable.”).

6 Given the credibility issue related to the nature of 

7 Abaserbi’s claim and his failure to corroborate his claim 

8 that the Ethiopian authorities continue to look for him, 

9 Abaserbi’s remaining evidence does not compel a conclusion 

10 contrary to that of the agency. See 8 U.S.C. 

11 § 1252(b)(4)(B). Because Abaserbi failed to meet his burden 

12 of proof for asylum, he “necessarily” failed to meet the 

13 higher burden for withholding of removal and CAT relief. See 

14 Lecaj v. Holder, 616 F.3d 111, 119–20 (2d Cir. 2010). 

15 For the foregoing reasons, the petition for review is 

16 DENIED. All pending motions and applications are DENIED and 

17 stays VACATED.

18 FOR THE COURT: 

19 Catherine O’Hagan Wolfe,

20 Clerk of Court