09-2607-ag 

Dowo v. Holder

BIA

Ferris, IJ

A098 480 466

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

for the Second Circuit, held at the Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of

New York, on the 5 day of March, two thousand ten. th

PRESENT:

GUIDO CALABRESI,

ROBERT A. KATZMANN,

PETER W. HALL,

 Circuit Judges.

_______________________________________

MACAIRE KONAN DOWO,

Petitioner, 

 v. 09-2607-ag

NAC

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondent.

_______________________________________

FOR PETITIONER: Ronald S. Salomon, New York, New

York.

FOR RESPONDENT: Tony West, Assistant Attorney

General, Civil Division; Leslie

McKay, Assistant Director; Kristin

K. Edison, Attorney, Office of

Immigration Litigation, United

States Department of Justice,

Washington, D.C.
 Dowo waives any claim based on his ethnicity. 1

2

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.

Petitioner Macaire Konan Dowo, a native and citizen of

the Ivory Coast, seeks review of a May 19, 2009, order of

the BIA affirming the July 23, 2007, decision of Immigration

Judge Noel Anne Ferris, denying his application for asylum, 

withholding of removal, and relief under the Convention

Against Torture (“CAT”). In re Macaire Konan Dowo, No. A098

480 466 (B.I.A. May 19, 2009), aff’g No. A098 480 466

(Immig. Ct. N.Y. City July 23, 2007). We assume the

parties’ familiarity with the underlying facts and

procedural history in this case.

Under the circumstances of this case, we review the

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

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

applicable standards of review are well-established. 

See 8 U.S.C. § 1252(b)(4)(B); see also Chuilu Lu v. Holder,

575 F.3d 193, 196 (2d Cir. 2009). 

Substantial evidence supports the agency’s

determination that Dowo failed to meet his burden of proof. 

The IJ did not make an adverse credibility determination. 

Nevertheless, she reasonably found that Dowo’s testimony

alone was insufficient to support his claim. See Diallo v.

INS, 232 F.3d 279, 285-86, 290 (2d Cir. 2000); Chuilu Lu,

575 F.3d at 196-99. Indeed, although Dowo based his claim

on his purported membership in the political party PDCI,1

the IJ noted that he failed to provide witnesses or other

evidence corroborating his membership in that party. In

finding that Dowo failed to meet his burden, the IJ

reasonably relied on the absence of such evidence,

particularly because she gave him ample opportunity to

present it. See Chuilu Lu, 575 F.3d at 198. 

With respect to the evidence Dowo did submit, the IJ

did not err in declining to afford it probative weight. See

Diallo, 232 F.3d at 285-86, 290. The IJ identified several
3

discrepancies between Dowo’s testimony and his medical

records. Moreover, Dowo admitted to altering one of his

PDCI membership cards and the other card contained

conflicting dates and lacked detailed information. No

reasonable fact finder would credit Dowo’s explanations for

these deficiencies. See Majidi v. Gonzales, 430 F.3d 77,

80-81 (2d Cir. 2005).

Because Dowo failed to establish his eligibility for

asylum, and his withholding of removal claim was based on

the same factual predicate, his withholding of removal claim

necessarily fails. See Paul v. Gonzales, 444 F.3d 148, 156

(2d Cir. 2006). Contrary to Dowo’s assertions, the IJ

conducted a separate inquiry regarding his eligibility for

CAT relief, and nothing compels us to disturb the IJ’s

determination that he was not eligible. See Khouzam v.

Ashcroft, 361 F.3d 161, 169 (2d Cir. 2004).

For the foregoing reasons, the petition for review is

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

removal that the Court previously granted in this petition

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

this petition is DISMISSED as moot. Any pending request for

oral argument in this petition is DENIED in accordance with

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

Circuit Local Rule 34.1(b).

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk