10 -2 94 -ag B IA

Ka ne v. H ol der Ba las qu id e, I J A095 589 155 

### UNITE D STA TES COU RT OF APPE ALS FOR T HE SE COND CIRCU IT 

# SUM MAR Y O RDE R

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SU MM AR Y ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GO VE RNED 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 ORD ER ”) . 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 Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 29 day of October, two thousand ten. th 5 6 PRESENT: 7 ROBERT A. KATZMANN, 8 RICHARD C. WESLEY, 9 DEBRA ANN LIVINGSTON, 10 C ircuit Judges . 11

_________________________________________ 12 13 MADOU KANE, 14 Petitioner , 15 16 v. 10-294-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent . 21

_______________________________________ 22 23 FOR PETITIONER: Gary J. Yerman, Yerman & Associates, 24 LLC, New York, New York. 25 26 FOR RESPONDENT: Tony West, Assistant Attorney 27 General; John S. Hogan, Senior 28 Litigation Counsel; Michael C. 29 Heyse, Trial Attorney, Office of 30 Immigration Litigation, United2 1 States Department of Justice, 2 Washington, D.C. 3 UPON DUE CONSIDERATION of this petition for review of a 4 Board of Immigration Appeals (“BIA”) decision, it is hereby 5 ORDERED, ADJUDGED, and DECREED, that the petition for review 6 is DENIED.

Madou Kane, a native and citizen of Mauritania, 7 seeks 8 review of a December 28, 2009 order of the BIA affirming the February 11, 2008 9 decision of Immigration Judge (“IJ”)Javier Balasquide, which 1 0 denied his applications for asylum, 1 1 withholding of removal, and relief under the Convention 1 2 Against Torture (“CAT”). In re Kane , No. A095 589 155 (B.I.A. Dec. 28, 2009), aff’g No. A095 589 155 1 3 (Immig. Ct. 1 4 N.Y. City Feb. 11, 2008). We assume the parties’ 1 5 familiarity with the underlying facts and procedural history 1 6 in this case. 1 7 Under the circumstances of this case, we review the 1 8 decision of the IJ as supplemented by the BIA. See Yan Chen 19 v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). The 2 0 applicable standards of review are well-established. See Salimatou Bah v. Mukasey , 529 F.3d 99, 110 (2d Cir. 2008); 21 22 Shu Wen Sun v. BIA , 510 F.3d 377, 379 (2d Cir. 2007). 2 3 As a preliminary matter, we note that we lack 2 4 jurisdiction to review the IJ’s denial of CAT relief,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-Rosales for cases filed after May 11, 2005, the effective date of the Act. Id. Because Kane’s application was filed before this date, Secaida-Rosales remains good law. See Zheng v. Mukasey , 552 F.3d 277, 287 n.6 (2d Cir. 2009). 3 1 because Kane failed to exhaust this claim before the BIA. 2 See Karaj v. Gonzales , 462 F.3d 113, 119 (2d Cir. 2006). As 3 to asylum and withholding of removal, we deny the petition 4 for review, as the agency’s adverse credibility determination is supported by substantial evidence. 5 6 In finding Kane not credible, the agency reasonably 7 relied in part on inconsistencies between his testimony and 8 his written asylum applications. See Secaida-Rosales v. 9 INS , 331 F.3d 297, 308-09 (2d Cir. 2003). Kane’s testimony * 1 0 conflicted with his written asylum applications with respect 1 1 to whether he was detained together with his family and 1 2 whether he was allowed to return home after his detention. 1 3 When Kane was asked to explain the inconsistencies between 1 4 his applications and his testimony, he faulted the person 1 5 who had prepared his applications. Given that his testimony 1 6 was inconsistent with both his initial and amended asylum 1 7 applications - prepared five years apart by different 1 8 individuals - the agency was not required to credit his4 1 explanation. See Majidi v. Gonzales , 430 F.3d 77, 80-81 (2d 2 Cir. 2005). Further, contrary to Kane’s argument, the 3 discrepancies the agency relied upon consist of directly 4 contradictory statements, and cannot be explained as mere 5 additional detail. Cf. Secaida-Rosales , 331 F.3d at 308-09. 6 Moreover, because these inconsistencies go to the heart of 7 Kane’s claim of past persecution, i.e. , his arrest and 8 detention in 1989, and were “substantial” when measured 9 against the record as a whole, the agency did not err in 1 0 relying on the inconsistencies to find him not credible. 11 See id. ; see also Pavlova v. INS , 441 F.3d 82, 90 (2d Cir. 1 2 2006). 1 3 The agency’s adverse credibility determination is 1 4 further supported by inconsistencies in the documents 1 5 submitted by Kane, particularly his national identification 1 6 card, which undermined his claim that he left Mauritania in 1 7 1989. Kane argues that the IJ erred in relying on the 1 8 identification card to find him not credible because, based 1 9 on his testimony that he did not know how or when the 2 0 identification card was issued, there was no basis to find 2 1 that he knowingly submitted a fraudulent document. We have 2 2 held that an IJ must make an explicit finding that the5 1 applicant knowingly submitted a fraudulent document before 2 using that document as the basis for an adverse credibility 3 finding. See Corovic v. Mukasey , 519 F.3d 90, 97-98 (2d 4 Cir. 2008). However, Kane misinterprets the IJ’s finding, 5 as the IJ did not find that Kane had submitted a fraudulent 6 identification card, but rather, taking the card at face 7 value, found that its date of issuance drew into serious 8 question whether Kane left Mauritania in 1989. The IJ thus 9 did not err in relying on the national identification card 1 0 as a basis for his adverse credibility determination. See 11 Xiu Xia Lin v. Mukasey , 534 F.3d 162, 166 n.3 (2d Cir. 1 2 2008).

Kane further argues 1 3 that the IJ’s finding regarding the 1 4 national identification card is “legally erroneous” because 1 5 the IJ relied on the card to find Kane incredible, but also 1 6 stated in his decision that he gave “little or no weight” to 1 7 the identification card. However, the IJ reasonably 1 8 determined that, to the extent the identification card was 1 9 entitled to any weight, it undermined Kane’s testimony. See 20 Xiao Ji Chen v. U.S. Dep’t of Justice , 471 F.3d 315, 342 (2d Cir. 2006) . 2 1 Ultimately, given the inconsistent testimony 2 2 regarding Kane’s arrest and expulsion from Mauritania, and 2 3 the submission of documents contradicting his testimony6 1 regarding his departure from Mauritania, the IJ’s adverse 2 credibility determination was supported by substantial 3 evidence. See Shu Wen Sun , 510 F.3d at 379-80. Because the 4 record supports the IJ’s conclusions, a reasonable fact5 finder would not be compelled to conclude to the contrary. 6 S ee Xian Tuan Ye v. Dep’t of Homeland Security , 446 F.3d 7 289, 294 (2d Cir. 2006). 8 Finally, since the only evidence of a threat to Kane’s 9 life or freedom depended upon his credibility, the adverse 1 0 credibility determination in this case necessarily precludes 1 1 success on the claim for withholding of removal. See Paul 12 v. Gonzales , 444 F.3d 148, 156 (2d Cir. 2006); Wu Biao Chen v. INS , 344 F.3d 272, 275 (2d Cir. 2003). 13 For the foregoing reasons, the petition for review is 14 1 5 DENIED. As we have completed our review, any stay of 1 6 removal that the Court previously granted in this petition 1 7 is VACATED, and any pending motion for a stay of removal in 1 8 this petition is DISMISSED as moot. Any pending request for 1 9 oral argument in this petition is DENIED in accordance with 2 0 Federal Rule of Appellate Procedure 34(a)(2), and Second 2 1 Circuit Local Rule 34.1(b). 2 2 FOR THE COURT: Catherine O’Hagan Wolfe, Clerk 23