13-2362

Diallo v. Lynch

BIA

Zagzoug, I.J.

A200 731 912

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

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At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Thurgood Marshall United

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

on the 24th day of August, two thousand fifteen.

PRESENT:

 ROBERT A. KATZMANN,

Chief Judge,

RICHARD C. WESLEY,

CHRISTOPHER F. DRONEY,

Circuit Judges. 

_____________________________________

ALPHA YAYA DIALLO,

Petitioner, 

 v. 13-2362

NAC 

LORETTA E. LYNCH, UNITED STATES

ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: Theodore Vialet, New York, N.Y.

FOR RESPONDENT: Stuart F. Delery, Assistant Attorney

General; M. Jocelyn Lopez Wright,

Senior Litigation Counsel; Margot L.

Carter, Trial Attorney, Office of

Immigration Litigation, United

States Department of Justice,

Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a

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

hereby ORDERED, ADJUDGED, AND DECREED that the petition for

review is DENIED.

Alpha Yaya Diallo, a native and citizen of Guinea,

seeks review of a May 20, 2013, decision of the BIA

affirming the October 24, 2011, decision of an Immigration

Judge (“IJ”) denying asylum, withholding of removal, and

Convention Against Torture (“CAT”) relief. In re Alpha Yaya

Diallo, No. A200 731 912 (B.I.A. May 20, 2013), aff’g No.

A200 731 912 (Immig. Ct. N.Y. City Oct. 24, 2011). We

assume the parties’ familiarity with the underlying facts,

procedural history, and issues presented for review. 

We have reviewed both the BIA’s and IJ’s decisions. 

See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.

2005) (per curiam). The standards of review are well

established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

Holder, 562 F.3d 510, 513 (2d Cir. 2009). 

In his petition for review, Diallo challenges the

agency’s adverse credibility and lack of corroboration

determinations. Diallo alleges that his family was attacked

by a military junta, and he fears he will be persecuted on

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account of his ethnicity and political beliefs if he returns

to Guinea.

Turning first to the adverse credibility determination,

for asylum applications, like Diallo’s, governed by the REAL

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

circumstances,” base a credibility finding on

inconsistencies in the applicant’s statements and other

record evidence without regard to whether they go “to the

heart of the applicant’s claim.” 8 U.S.C.

§ 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

163-64 (2d Cir. 2008) (per curiam). The agency’s adverse

credibility determination is supported by substantial

evidence. 

First, as the IJ found, the inconsistencies in Diallo’s

statements call his credibility into question. Diallo

initially testified that his family was attacked by members

of the military in July 2009, but when asked why his

application listed that attack as occurring in September

2009, Diallo stated that he was not sure when his family was

attacked. The attack is further called into question by

Diallo’s wife’s letter, which stated that “events” occurred

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in September 2009, but the family was attacked in October

2009. The agency reasonably relied on this inconsistency.

The adverse credibility determination is further

supported by inconsistencies related to harm suffered by

Diallo’s relatives. Diallo testified that his cousin was

killed in July 2009, but his application listed the date as

September 28, 2009. Second, and more glaring, Diallo

testified that his uncle had been arrested by the military

and was either dead or in prison, but his wife’s statement

reflected that Diallo’s uncle had been released. The agency

was not required to credit Diallo’s explanation that people

had kept the truth from his wife because his wife would be

emotional. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d

Cir. 2005).

Finally, the agency found material omissions in

Diallo’s asylum application, further undermining his

credibility. Xiu Xia Lin, 534 F.3d at 166 n.3 (an omission

in the applicant’s testimony or supporting documents may

“serve as a proper basis for an adverse credibility

determination,” as an omission is the functional equivalent

of an inconsistency). Diallo testified that he was “on the

list” of the Guinean military, that he was in hiding from

1998 to 2008, and that the Guinean military told his wife

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that they planned to kill him. Diallo conceded that he

omitted these facts from his application, but argues that an

application need not contain every detail. Although it is

true that an alien need not list every detail in an

application, see Pavlova v. INS, 441 F.3d 82, 90 (2d Cir.

2006), here the agency reasonably relied on the omission

because Diallo’s application was lengthy and detailed

regarding other incidents, see Xiu Xia Lin, 534 F.3d at 167.

The agency also considered whether Diallo separately

met his burden of showing a well-founded fear of persecution

on account of his U.S. political activities and ethnicity. 

When, as here, testimony had already been called into

question, the agency may reasonably look to whether

corroborating evidence satisfies the applicant’s burden. 

See 8 U.S.C. § 1158(b)(1)(B)(ii).

Diallo claimed that the Guinean military was aware of

his political protest activities in the United States

because they were televised in Guinea and he was a known

member of the Union of Democratic Forces of Guinea (“UDFG”). 

However, as the agency found, Diallo failed to submit any

evidence showing that the Guinean media broadcast these

protests. And he failed to establish his UDFG membership. 

While he submitted a document purportedly establishing his

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UDFG membership, the document is entitled “letter for

recommendation,” and identifies UDFG’s mission statement; it

does not state that Diallo is a UDFG member. Nor did Diallo

call any witnesses to testify about his political

activities. As Diallo did not testify credibly, the agency

reasonably considered Diallo’s lack of corroboration. 8

U.S.C. § 1158(b)(1)(B)(ii); Chuilu Liu v. Holder, 575 F.3d

193, 196-97 (2d Cir. 2009).

Diallo’s alleged fear of future persecution on account

of his political opinion and ethnicity is also undermined by

the country conditions evidence he relies on. In his brief,

Diallo argues that a 2010 State Department report documented

attacks against UDFG supporters and ethnic Fulanis. A

review of that report shows general violence related to the

2010 Guinean presidential election, with members of both

major political parties engaged in violent protests. This

general violence is insufficient to establish a well-founded

fear of future persecution. See Melgar de Torres v. Reno,

191 F.3d 307, 314 n.3 (2d Cir. 1999).

The inconsistencies and omissions provide substantial

evidence to support the adverse credibility determination. 

See Xiu Xia Lin, 534 F.3d at 167. Accordingly, absent

credible testimony regarding past persecution, the agency

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reasonably concluded that the lack of corroborating evidence

about the Guinean military’s alleged interest in harming

Diallo or his family prevented Diallo from meeting his

burden of proof. 8 U.S.C. § 1158(b)(1)(B)(ii). As Diallo’s

claims all share the same factual predicate, the adverse

credibility determination and corroboration finding are

dispositive of asylum, withholding of removal, and CAT

relief. See Lecaj v. Holder, 616 F.3d 111, 119-20 (2d Cir.

2010); Paul v. Gonzales, 444 F.3d 148, 155-57 (2d Cir.

2006).

For the foregoing reasons, the petition for review is

DENIED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

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