11-905-ag Diallo v. Holder BIA Nelson, IJ A094 813 513 

### 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 Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 22 nd** **day of November, two thousand eleven.** 4 5 **PRESENT:** 6 **JOSÉ A. CABRANES,** 7 **ROBERT A. KATZMANN,** 8 **DENNY CHIN,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **ABDOUL GADIRI DIALLO,** 13 Petitioner**,** 14 15 **v. 11-905-ag** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**_______________________________________** 21 22 **FOR PETITIONER: Bibiana C. Andrade, New York,** 23 **New York.** 24 25 **FOR RESPONDENT: Tony West, Assistant Attorney** 26 **General; Derek C. Julius, Senior** 27 **Litigation Director; Theo Nickerson,** 28 **Trial Attorney, Office of** 292 **Immigration Litigation, United** 1 **States Department of Justice,** 2 **Washington, D.C.** 3 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED that the petition for review 7 is DENIED. 8 Petitioner Abdoul Gadiri Diallo, a native and citizen 9 of Guinea, seeks review of a February 18, 2011, order of the 10 BIA, affirming an April 1, 2009, decision of an Immigration 11 Judge (“IJ”), which denied his application for asylum, 12 withholding of removal, and relief under the Convention 13 Against Torture (“CAT”). In re Abdoul Gadiri Diallo , No. 14 A094 813 513 (B.I.A. Feb. 18, 2011), aff’gNo. A094 813 513 15 (Immig. Ct. N.Y. City Apr. 1, 2009). We assume the parties’ 16 familiarity with the underlying facts and procedural history 17 in this case. 18 Under the circumstances of this case, we review both 19 the BIA’s and the IJ’s decisions, including the portions of 20 the IJ’s decision not expressly discussed by the BIA. See 21 Yun-Zui Guan v. Gonzales , 432 F.3d 391, 394 (2d Cir. 2005). 22 The applicable standards of review are well-established. 23
See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 243 F.3d 510, 513 (2d Cir. 2009). For applications like this 1 one, governed by the REAL ID Act of 2005, the agency may 2 base a credibility finding on an asylum applicant’s 3 demeanor, the plausibility of his account, and 4 inconsistencies in his statements, without regard to whether 5 they go “to the heart of the applicant’s claim.” 8 U.S.C. 6 § 1158(b)(1)(B)(iii); Matter of J-Y-C- , 24 I. & N. Dec. 260, 7 265 (B.I.A. 2007). We defer to an IJ’s credibility 8 determination “unless, from the totality of the 9 circumstances, it is plain that no reasonable fact-finder 10 could make such an adverse credibility ruling.”Xiu Xia Lin 11 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). Analyzed 12 under the REAL ID Act, the agency’s adverse credibility 13 determination is supported by substantial evidence. 14 In finding Diallo not credible, the agency reasonably 15 relied on inconsistencies in the record regarding his 16 position in the student council. See8 U.S.C. 17 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167; Matter 18 of J-Y-C- , 24 I. & N. Dec. at 265. Diallo attempted to 19 explain the conflict between his testimony that he was the 20 general secretary and his application indicating that he was 21 arrested with the general secretary by arguing that the 224 preparer of the application may have made a mistake. The 1 agency was entitled, however, to disregard this explanation 2 because, upon review of the record, it would not necessarily 3 be compelling to a reasonable fact-finder. See Majidi v. 4 Gonzales , 430 F.3d 77, 80-81 (2d Cir. 2005). 5 The agency also reasonably relied on inconsistencies in 6 the record regarding where Diallo received medical treatment 7 in finding him not credible. See 8 U.S.C. 8 § 1158(b)(1)(B)(iii). As the agency noted, Diallo initially 9 testified that his uncle secured his release so that he 10 could be treated at the hospital, later testified that he 11 received treatment at home, and yet later testified that he 12 registered at Wichita State “after [he] got out of the 13 hospital.” Notwithstanding Diallo’s argument to the 14 contrary, these inconsistencies were a proper basis for the 15 agency’s adverse credibility determination. See8 U.S.C. 16 § 1158(b)(1)(B)(iii); Matter of J-Y-C- , 24 I. & N. Dec. at 17 260. 18 Similarly, the agency reasonably relied on omissions in 19 Diallo’s uncle’s letter in finding him not credible.See 20 Xiu Xia Lin, 534 F.3d at 166 n.3. Diallo testified that his 21 uncle was fired from his government job, imprisoned, and had 225 his property destroyed in retaliation for helping Diallo 1 flee Guinea; however, Diallo’s uncle’s letter fails to 2 mention any of these events. Although Diallo argues that he 3 should not be faulted for his uncle’s mistake, the agency 4 was entitled to rely on this omission in finding him not 5 credible. See Xiu Xia Lin, 534 F.3d at 166 n.3;see Majidi , 6 430 F.3d at 80-81. Having found Diallo not credible, the 7 agency reasonably noted that his failure to provide 8 corroborative evidence further undermined his credibility, 9 especially given Diallo’s concession that medical records 10 were available. See Biao Yang v. Gonzales , 496 F.3d 268, 11 273 (2d Cir. 2007). 12 In addition, the agency did not err in finding that 13 Diallo failed to establish a well-founded fear of 14 persecution based on his Union for Progress and Renewal 15 (“UPR”) activities in the United States. See Jian Xing 16 Huang v. INS, 421 F.3d 125, 128-29 (2d Cir. 2005). While 17 Diallo contends that the IJ erred by discrediting his UPR 18 membership card due to a lack of foundation, the weight 19 afforded to documentary evidence is generally a matter of 20 agency discretion. Xiao Ji Chen v. U.S. Dep’t of Justice , 21 471 F.3d 315, 342 (2d Cir. 2006); see In re C-Y-Z- , 21 I. & 22 N. Dec. 915, 920 (B.I.A. 1997). Given that Diallo failed to 236 offer any other evidence of his UPR membership, the agency 1 did not err in its decision to give diminished evidentiary 2 weight to his UPR membership card. See Qin Wen Zheng v. 3 Gonzales , 500 F.3d 143, 146-49 (2d Cir. 2007). 4 Similarly, the agency’s finding that Diallo failed to 5 show a nexus between the persecution he feared on account of 6 his UPR membership and a protected ground is supported by 7 substantial evidence. See8 U.S.C. § 1252(b)(4)(B). As the 8 agency noted, Diallo’s testimony indicated that he may not 9 have had any political motive in joining the UPR. Under 10 such circumstances, the agency’s finding that Diallo failed 11 to show a nexus between his alleged fear of persecution and 12 his UPR membership, is supported by substantial evidence. 13 See Siewe v. Gonzales , 480 F.3d 160, 166-68 (2d Cir. 2007); 14 Ahmed v. Ashcroft , 286 F.3d 611, 612 (2d Cir. 2002). 15 In light of the agency’s adverse credibility and burden 16 findings, it did not err in denying Diallo’s applications 17 for relief. See Xiu Xia Lin , 534 F.3d at 167; Paul v. 18 Gonzales , 444 F.3d 148, 156 (2d Cir. 2006) (holding that the 19 agency need not separately analyze a withholding of removal 20 claim based on the same facts as an applicant’s asylum 21 claim); Xue Hong Yang v. U.S. Dep’t of Justice , 426 F.3d 22 520, 523 (2d Cir. 2006) (same, with respect to CAT). 237 We decline to consider Diallo’s argument that the 1 agency erred by refusing to admit some evidence of country 2 conditions, as it was not raised before the agency. See Lin 3 Zhong v. U.S. Dep’t of Justice , 480 F.3d 104, 120 (2d Cir. 4 2007). 5 For the foregoing reasons, the petition for review is 6 DENIED. As we have completed our review, any stay of 7 removal that the Court previously granted in this petition 8 is VACATED, and any pending motion for a stay of removal in 9 this petition is DENIED as moot. Any pending request for 10 oral argument in this petition is DENIED in accordance with 11 Federal Rule of Appellate Procedure 34(a)(2), and Second 12 Circuit Local Rule 34.1(b). 13
FOR THE COURT: 14 Catherine O’Hagan Wolfe, Clerk 15 16 17