12-1298 Diallo v. Holder BIA Van Wyke, IJ A098 906 110 

### 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. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 30 th** **day of August, two thousand thirteen.** 4 5 **PRESENT:** 6 **ROBERT A. KATZMANN,** 7 **DENNY CHIN,** 8 **CHRISTOPHER F. DRONEY,** 9 Circuit Judges**.** 10 11

**______________________________________** 12 13 **MAMADOU KOULABIOU DIALLO,** 14 Petitioner**,** 15 16 **v. 12-1298**  17 **NAC** 18 **ERIC H. HOLDER, JR., UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent**.** 21

**______________________________________** 22 23 **FOR PETITIONER: Gary J. Yerman, New York, New York** 24 25 **FOR RESPONDENT: Stuart F. Delery, Principal Deputy** 26 **Assistant Attorney General; James A.** 27 **Hunolt, Senior Litigation Counsel;** 28 **Jesse D. Lorenz, Trial Attorney,** 29**Office of Immigration Litigation,** 1 **Civil Division, United States** 2 **Department of Justice, Washington,** 3 **D.C.** 4 5 UPON DUE CONSIDERATION of this petition for review 6 of a Board of Immigration Appeals (“BIA”) decision, it is 7 hereby ORDERED, ADJUDGED, AND DECREED that the petition for 8 review is DENIED. 9 Petitioner Mamadou Koulabiou Diallo, a native and 10 citizen of Guinea, seeks review of a March 8, 2012, order of 11 the BIA affirming the December 16, 2009, decision of 12 Immigration Judge (“IJ”) William Van Wyke denying Diallo's 13 application for asylum, withholding of removal, and relief 14 under the Convention Against Torture (“CAT”). In re Mamadou 15 Koulabiou Diallo , No. A098 906 110 (B.I.A. Mar. 8, 2012), 16 aff’gNo. A098 906 110 (Immig. Ct. N.Y. City Dec. 16, 2009). 17 We assume the parties’ familiarity with the underlying facts 18 and procedural history in this case. 19 Under the circumstances of this case, we review 20 the decision of the IJ as supplemented by the BIA. See Yan 21 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The 22 applicable standards of review are well-established. See 23 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 24 510, 513 (2d Cir. 2009). For asylum applications like 25

2Diallo’s, submitted prior to the passage of the REAL ID Act, 1 an adverse credibility determination must be based on 2 “specific, cogent reasons” that “bear a legitimate nexus to 3 the finding,” and any discrepancy must be “substantial” when 4 measured against the record as a whole. See Secaida-Rosales 5
v. INS, 331 F.3d 297, 307-08 (2d Cir. 2003) (quotations 6 omitted), superseded by statute as recognized by Xiu Xia Lin 7 v. Mukasey, 534 F.3d 162, 163-64 (2d Cir. 2008) (per 8 curiam); Tu Lin v. Gonzales , 446 F.3d 395, 400 (2d Cir. 9 2006). Here, substantial evidence supports the agency’s 10 adverse credibility determination. 11 The agency concluded that Diallo was not credible 12 because he provided inconsistent testimony and evidence 13 about several important aspects of his claim for relief, 14 including, for example, when he joined the Rally for the 15 People of Guinea Party, what he did while he was purportedly 16 in hiding following his detention in 2004, and whether his 17 parents were politically active in Guinea. These 18 inconsistencies were not minor or isolated, but related 19 directly to the basis of Diallo’s claim that he suffered 20 past persecution on account of his political activities. 21 Secaida-Rosales , 331 F.3d at 307. Taken cumulatively, they 22

3cast doubt on the veracity of Diallo's claim that he was 1 politically active in Guinea and persecuted on account of 2 those activities, and they support the agency’s finding that 3 he was not credible. See Tu Lin, 446 F.3d at 402. 4 Diallo also argues that the agency failed to take 5 his explanations for the inconsistencies into account. 6 However, the IJ considered, and reasonably rejected as 7 unsatisfactory, Diallo’s explanations for the discrepancies. 8 See Majidi v. Gonzales , 430 F.3d 77, 80 (2d Cir. 2005) (“A 9 petitioner must do more than offer a plausible explanation 10 for his inconsistent statements to secure relief; he must 11 demonstrate that a reasonable fact-finder would be compelled 12 to credit his testimony.” (quotations omitted)). 13 Specifically, as the agency noted, Diallo failed to offer 14 any explanation as to why he could not name the capital of 15 Guinea, despite filing a detailed asylum statement that 16 suggested at least basic political knowledge. In addition, 17 though Diallo testified he joined his political party in 18 1993 and his application stated he joined in 1997, his 19 explanation was that there was no discrepancy. Furthermore, 20 Diallo’s explanations that he had not understood the 21 questions regarding whether he emerged from hiding to do 22

4anything except get food, and whether his parents were 1 members of a political party were unconvincing as the 2 questions were clear and were asked numerous times before 3 the contradiction was pointed out to him. As the 4 explanations would not compel a factfinder to credit the 5 testimony, the agency properly relied on the cumulative 6 effect of the inconsistencies in making the adverse 7 credibility determination. See Tu Lin, 446 F.3d at 402. 8 Given the multiple inconsistencies, the agency’s 9 adverse credibility determination is supported by 10 substantial evidence. See Secaida-Rosales , 331 F.3d at 307. 11 Moreover, the adverse credibility determination provided an 12 adequate basis for denying asylum, withholding of removal, 13 and CAT relief because the claims were based on the same 14 factual predicate. Paul v. Gonzales, 444 F.3d 148, 156-57 15 (2d Cir. 2006). 16 For the foregoing reasons, the petition for review 17 is DENIED. As we have completed our review, any stay of 18 removal that the Court previously granted in this petition 19 is VACATED, and any pending motion for a stay of removal in 20 this petition is DENIED as moot. Any pending request for 21 oral argument in this petition is DENIED in accordance with 22

5Federal Rule of Appellate Procedure 34(a)(2), and Second 1 Circuit Local Rule 34.1(b). 2
FOR THE COURT: 3 Catherine O’Hagan Wolfe, Clerk 4 5 6 7

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