19

- 3629 Abaserbi v. Garland

BIA Wright, IJ A 205 789 139 

### 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 APP**  **ENDIX 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.** 
**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held a**  **t the Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 2**  **3 r**  **d da**  **y of F**  **e b**  **r u**  **a r**  **y , two thousand**  **twenty**

  4 ** two.** 5 6 **PRESENT:** 7 **GERARD E. LYNCH ,**  8 **JOSEPH F. BIANCO ,**  9 **BETH ROBINSON ,**  10 **Circuit Judges.** 11

**_____________________________________** 12 13 **SADAM USMAN ABASERBI ,**  14 **Petitioner ,**  15 16
**v. 19** 

**- 3629**  17 **NAC** 18 **MERRICK B. GARLAND ,**  **UNITED** 19 **STATES ATTORNEY GENERAL,** 20 **Respondent**

**.** 21

**_____________________________________** 22 23 **FOR PETITIONER :**  Stanley A. Cohen, Esq., 24 New York, NY

. 25 26 **FOR RESPONDENT:** Jeffrey Bossert Clark , Acting 27 Assistant Attorney General ; Zoe J. 282 Heller , Senior Litigation Counsel ; 1 Katherine A. Smith , Trial 2 Attorney, Office of Immigration 3 Litigation, United States 4 Department of Justice, Washington, 5 D C. 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 petitio n for review 9

is DENIED

. 10

Petitioner Sadam Usman Abaserbi , a native and citizen of 11
Ethiopia , seeks review of a September 30, 2019 , decision of 12

the BIA affirming a February 8 , 2018 , decision of an 13
Immigration Judge (“IJ”) denying asylum, withholding of 14
removal, and protection under the Convention Against Torture 15

(“CAT”)

. In re Sadam Usman Abaserbi , No. A 205 789 139 16

(B.I.A. Sept. 30, 2019 ), aff’g No. A 205 789 139 (Immig. Ct. 17
N.Y. City Feb. 8, 2018 ). We assume the parties’ familiarity 18

with the underlying facts and procedural history. 19

We have consider ed both the IJ’s and the BIA’s opinions 20
“for the sake of completeness.” Wangchuck v. Dep’t of 21

Homeland Sec

. , 448 F.3d 524, 528 (2d Cir. 2006). We review 22
adverse credibility determinations for substantial evidence, 23
Hong Fei Gao v. Sessions , 891 F.3d 67, 76 (2d Cir. 2018), and 243 treat the agency’s findings of fact as “conclusive unless any 1
reasonable adjudicator w ould be compelled to conclude to the 2
contrary,” 8 U.S.C. § 1252(b)(4)(B). 3
An asylum applicant , like Abaserbi, who does not allege 4
past persecution, has the burden to demonstrate an 5
objectively reasonable fear of future persecution. See 6

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

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

2004) ( requiring applicant to “present credible testimony 9
that he subjectively fears persecution and establish that his 10
fear is objectively reasonable”). As the governing statute 11
provides: 12
The testimony of the applicant may be sufficient to 13 sustain the applicant’s burden without 14

corro boration, but only if . . . the applicant’s 15 testimony is credible, is persuasive, and refers to 16 specific facts sufficient to demonstrate that the 17 applicant is a refugee. In determining whether the 18 applicant has met the . . . burden, the trier of 19 fact may weigh the credible testimony along with 20 other evidence of record. Where the trier of fact 21 determines that the applicant should provide 22 evidence that corroborates otherwise credible 23 testimony, such evidence must be provided unless the 24 applicant does not ha ve the evidence and cannot 25 reasonably obtain the evidence. 26 27 8 U.S.C. § 1158(b)(B)(ii). 28
We find no error in the agency’s conclusion that Abaserbi 294 did not meet his burden of proof. The agency did not err in 1
relying on an inconsistency to find Abaserbi not c redible , 2

because “ a trier of fact may base a credibility determination 3
on” inconsistencies within and between an applicant’s 4

“written and oral statements ( whenever made and whether or 5
not under oath and considering the circumstances under which 6

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

Abaserbi was inconsistent about the circumstances of his 8
father’s arrest, testifying before the IJ tha t he was present 9
when the police took his father from the family’s home, which 10
conflicted with his prior credible fear interview statement 11

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

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

not know the circumstances. CAR 394

- 95. Because his father’s 14
alleged arrest for suspected involve ment in co llecting money 15

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

own fear of persecution should he be returned to Ethiopia , 17
the inconsistency constitutes s ubstantial evidence for the 18
agency’s adverse credibility ruling. See Likai Gao v. Barr , 19

968 F.3d 137, 145 n.8 (2d Cir. 2020) (“ [T] his Court [ has ] 20
recognized that even a single inconsistency might preclude an 215 alien from showing that an IJ was compelled to find him 1

credible

. ”) . Given Abaserbi ’s concession that he understood 2
the questions at the interview , even though the interview was 3
not conducted in his native language, and the fact that the 4
interview record reflects that he was responsive to the 5
questions asked, the agency did not err in de eming the 6

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

F.3d 719, 725

– 26 (2d Cir. 2009) ( discussing indicia of 8
reliability ). 9

T he agency also did not err in requiring additional 10

corroboration for Abaserbi’s claim

. See 8 U.S.C. 11

§ 1158(b)(1)(B)(ii) (allowing IJ to require corroboration of 12
even credible testimony) ; Wei Sun v. Session, 883 F.3d 23, 13

28

– 29 (2d Cir. 2018)

. Abaserbi alleged that the Ethiopian 14

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

recent letter from his mother to confirm that fact or provide 16
a letter from his brother to document his brother’s alleged 17
problems with authorities stemming from his Oromo ethnicity. 18
Given Abaserbi’s ability to obtain other documents from 19
Ethiopia, the record does not comp el a conclusion that such 20

letters were unavailable

. See 8 U.S.C. § 1252(b)(4) (“N o 216 court shall reverse a determination made by a trier of fact 1
with respect to the availability of corroborating evidence 2

. . . unless the court finds

. . . that a reasonable trier of 3
fact is compelled to conclude that such corroborating 4

evidence is unavailable. ”). 5
Given the credibility issue related to the nature of 6

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

that the Ethiopian authorities cont inue to look for him, 8

Abaserbi’s remaining evidence does not compel a conclusion 9
contrary to th at of the agency

. See 8 U.S.C. 10

§ 1252(b)(4)(B). Because Abaserbi failed to meet his burden 11
of proof for asylum, he “ necessarily ” failed to meet the 12
higher burden for withholding of removal and CAT relief. See 13
Lecaj v. Holder , 616 F.3d 111, 119

– 20 (2d Cir. 2010). 14
For the foregoing reasons, the petition for review is 15

DENIED

. All pending motions and applications are DENIED and 16

stays VACATED. 17

FOR THE COURT: 18 Catherine O ’ Hagan Wolfe , 19 Clerk of Court 20