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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

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

on the 30th 4 day of August, two thousand thirteen.

5

6 PRESENT:

7 ROBERT A. KATZMANN,

8 DENNY CHIN,

9 CHRISTOPHER F. DRONEY,

10 Circuit Judges. 

11

12 ______________________________________

13

14 MAMADOU KOULABIOU DIALLO,

15 Petitioner, 

16

17 v. 12-1298

18 NAC

19 ERIC H. HOLDER, JR., UNITED STATES

20 ATTORNEY GENERAL,

21 Respondent.

22 ______________________________________

23

24 FOR PETITIONER: Gary J. Yerman, New York, New York

25

26 FOR RESPONDENT: Stuart F. Delery, Principal Deputy

27 Assistant Attorney General; James A.

28 Hunolt, Senior Litigation Counsel;

29 Jesse D. Lorenz, Trial Attorney,
1 Office of Immigration Litigation,

2 Civil Division, United States

3 Department of Justice, Washington,

4 D.C.

5

6 UPON DUE CONSIDERATION of this petition for review

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

8 hereby ORDERED, ADJUDGED, AND DECREED that the petition for

9 review is DENIED.

10 Petitioner Mamadou Koulabiou Diallo, a native and

11 citizen of Guinea, seeks review of a March 8, 2012, order of

12 the BIA affirming the December 16, 2009, decision of

13 Immigration Judge (“IJ”) William Van Wyke denying Diallo's

14 application for asylum, withholding of removal, and relief

15 under the Convention Against Torture (“CAT”). In re Mamadou

16 Koulabiou Diallo, No. A098 906 110 (B.I.A. Mar. 8, 2012),

17 aff’g No. A098 906 110 (Immig. Ct. N.Y. City Dec. 16, 2009). 

18 We assume the parties’ familiarity with the underlying facts

19 and procedural history in this case.

20 Under the circumstances of this case, we review

21 the decision of the IJ as supplemented by the BIA. See Yan

22 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The

23 applicable standards of review are well-established. See

24 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

25 510, 513 (2d Cir. 2009). For asylum applications like

2
1 Diallo’s, submitted prior to the passage of the REAL ID Act,

2 an adverse credibility determination must be based on

3 “specific, cogent reasons” that “bear a legitimate nexus to

4 the finding,” and any discrepancy must be “substantial” when

5 measured against the record as a whole. See Secaida-Rosales

6 v. INS, 331 F.3d 297, 307-08 (2d Cir. 2003) (quotations

7 omitted), superseded by statute as recognized by Xiu Xia Lin

8 v. Mukasey, 534 F.3d 162, 163-64 (2d Cir. 2008) (per

9 curiam); Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir.

10 2006). Here, substantial evidence supports the agency’s

11 adverse credibility determination. 

12 The agency concluded that Diallo was not credible

13 because he provided inconsistent testimony and evidence

14 about several important aspects of his claim for relief,

15 including, for example, when he joined the Rally for the

16 People of Guinea Party, what he did while he was purportedly

17 in hiding following his detention in 2004, and whether his

18 parents were politically active in Guinea. These

19 inconsistencies were not minor or isolated, but related

20 directly to the basis of Diallo’s claim that he suffered

21 past persecution on account of his political activities. 

22 Secaida-Rosales, 331 F.3d at 307. Taken cumulatively, they

3
1 cast doubt on the veracity of Diallo's claim that he was

2 politically active in Guinea and persecuted on account of

3 those activities, and they support the agency’s finding that

4 he was not credible. See Tu Lin, 446 F.3d at 402.

5 Diallo also argues that the agency failed to take

6 his explanations for the inconsistencies into account. 

7 However, the IJ considered, and reasonably rejected as

8 unsatisfactory, Diallo’s explanations for the discrepancies. 

9 See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A

10 petitioner must do more than offer a plausible explanation

11 for his inconsistent statements to secure relief; he must

12 demonstrate that a reasonable fact-finder would be compelled

13 to credit his testimony.” (quotations omitted)). 

14 Specifically, as the agency noted, Diallo failed to offer

15 any explanation as to why he could not name the capital of

16 Guinea, despite filing a detailed asylum statement that

17 suggested at least basic political knowledge. In addition,

18 though Diallo testified he joined his political party in

19 1993 and his application stated he joined in 1997, his

20 explanation was that there was no discrepancy. Furthermore,

21 Diallo’s explanations that he had not understood the

22 questions regarding whether he emerged from hiding to do

4
1 anything except get food, and whether his parents were

2 members of a political party were unconvincing as the

3 questions were clear and were asked numerous times before

4 the contradiction was pointed out to him. As the

5 explanations would not compel a factfinder to credit the

6 testimony, the agency properly relied on the cumulative

7 effect of the inconsistencies in making the adverse

8 credibility determination. See Tu Lin, 446 F.3d at 402.

9 Given the multiple inconsistencies, the agency’s

10 adverse credibility determination is supported by

11 substantial evidence. See Secaida-Rosales, 331 F.3d at 307. 

12 Moreover, the adverse credibility determination provided an

13 adequate basis for denying asylum, withholding of removal,

14 and CAT relief because the claims were based on the same

15 factual predicate. Paul v. Gonzales, 444 F.3d 148, 156-57

16 (2d Cir. 2006). 

17 For the foregoing reasons, the petition for review

18 is DENIED. As we have completed our review, any stay of

19 removal that the Court previously granted in this petition

20 is VACATED, and any pending motion for a stay of removal in

21 this petition is DENIED as moot. Any pending request for

22 oral argument in this petition is DENIED in accordance with

5
1 Federal Rule of Appellate Procedure 34(a)(2), and Second

2 Circuit Local Rule 34.1(b).

3 FOR THE COURT: 

4 Catherine O’Hagan Wolfe, Clerk

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