18-983 Ismail v. Barr

BIA Straus, IJ A206 514 530 

### 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 TO 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** 2 **United States Courthouse, 40 Foley Square, in the City of** 3 **New York, on the 16 th**  **day of January, two thousand twenty.** 4 5 **PRESENT:** 6 **BARRINGTON D. PARKER,** 7 **MICHAEL H. PARK,** 8 Circuit Judges. 1 9

**_____________________________________** 10 11 **ABDUL F. ISMAIL** 12 Petitioner **,** 13 14 **v. 18-983** 15 **NAC** 16 **WILLIAM P. BARR, UNITED STATES** 17 **ATTORNEY GENERAL,** 18 Respondent **.** 19

**_____________________________________** 20 21 22 **FOR PETITIONER:** Megan E. Kludt, Northampton, MA. 23 24 25

1 Judge Christopher F. Droney, who was originally assigned to the panel, retired from the Court, effective January 1, 2020, prior to the resolution of this case. The remaining two members of the panel, who are in agreement, have determined the matter. See 28 U.S.C. § 46(d); 2d Cir. IOP E(b); United States v. Desimone , 140 F.3d 457, 458–59 (2d Cir. 1998).2 **FOR RESPONDENT:** Joseph H. Hunt, Assistant Attorney 1 General; Jeffery R. Leist, Senior 2 Litigation Counsel; Yedidya Cohen, 3 Trial Attorney, Office of 4 Immigration Litigation, United 5 States Department of Justice, 6 Washington, DC. 7 UPON DUE CONSIDERATION of this petition for review of a 8 Board of Immigration Appeals (“BIA”) decision, it is hereby 9 ORDERED, ADJUDGED, AND DECREED that the petition for review 10 is DENIED in part and DISMISSED in part. 11 Petitioner Abdul F. Ismail, a native and citizen of 12 Ghana, seeks review of a March 29, 2018, decision of the BIA 13 affirming an October 4, 2017, decision of an Immigration Judge 14 (“IJ”) denying Ismail’s application for asylum, withholding 15 of removal, and relief under the Convention Against Torture 16 (“CAT”) and denying his motion to continue his proceedings to 17 await a decision from U.S. Citizenship and Immigration 18 Services (“USCIS”). In re Abdul F. Ismail, No. A 206 514 530 19 (B.I.A. Mar. 29, 2019), aff’g No. A 206 514 530 (Immig. Ct. 20 Hartford Oct. 4, 2017). We assume the parties’ familiarity 21 with the underlying facts and procedural history in this case. 22 23
243 Asylum, Withholding of Removal, and CAT 1 Under the circumstances of this case, we have reviewed 2 both the BIA’s and IJ’s decisions. See Yun-Zui Guan v. 3 Gonzales , 432 F.3d 391, 394 (2d Cir. 2005). The applicable 4 standards of review are well established. See 8 U.S.C. 5 § 1252(b)(4); Hong Fei Gao v. Sessions , 891 F.3d 67, 76 (2d 6 Cir. 2018); Chuilu Liu v. Holder , 575 F.3d 193, 196 (2d Cir. 7 2009). Ismail claimed that he was targeted in Ghana because 8 he was perceived as gay and that he would be targeted again 9 if he returned. 10 The agency did not err in finding that Ismail failed to 11 meet his burden of proof. 12 The testimony of the applicant may be sufficient to 13 sustain the applicant’s burden without 14 corroboration, but only if the applicant satisfies 15 the trier of fact that the applicant’s testimony is 16 credible, is persuasive, and refers to specific 17 facts sufficient to demonstrate that the applicant 18 is a refugee. In determining whether the applicant 19 has met the applicant’s burden, the trier of fact 20 may weigh the credible testimony along with other 21 evidence of record. Where the trier of fact 22 determines that the applicant should provide 23 evidence that corroborates otherwise credible 24 testimony, such evidence must be provided unless the 25 applicant does not have the evidence and cannot 26 reasonably obtain the evidence. 27 28 8 U.S.C. § 1158(b)(1)(B)(ii); see also Chuilu Liu , 575 F.3d 294 at 196–98. The IJ need not specify the points of testimony 1 that require corroboration prior to the IJ’s disposition of 2 the claim because “the alien bears the ultimate burden of 3 introducing such evidence without prompting from the IJ.” 4 Chuilu Liu , 575 F.3d at 198. “No court shall reverse a 5 determination made by a trier of fact with respect to the 6 availability of corroborating evidence . . . unless the court 7 finds . . . that a reasonable trier of fact is compelled to 8 conclude that such corroborating evidence is unavailable.” 9 8 U.S.C. § 1252(b)(4). 10 The IJ reasonably required corroboration given that 11 Ismail admitted he lied under oath to immigration officials 12 both during his visa interview in 2011 and to border officials 13 when he came to the United States in 2013. See 8 U.S.C. 14 § 1158(b)(1)(B)(iii) (IJ may rely on falsehoods in any 15 statement “without regard to whether . . . [it] goes to the 16 heart of the applicant’s claim”); id. § 1158(b)(1)(B)(ii) 17 (requiring IJ to weigh testimony and corroborating evidence). 18 Ismail attempted to obtain a visa in 2011 by falsely claiming 19 that he was enrolled in college in Ghana and was part of a 20 student-exchange program. And when he entered the United 215 States in 2013, he told border officials that he came to the 1 United States by boat when, in fact, he flew from Ghana to 2 Mexico City. The agency was not required to accept Ismail’s 3 explanation that he was scared of having to return to Ghana, 4 because he did not explain why he believed he would be sent 5 back if he told the truth regarding his travel. See Majidi 6 v. Gonzales , 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner 7 must do more than offer a plausible explanation for . . . 8 inconsistent statements to secure relief; he must demonstrate 9 that a reasonable fact-finder would be compelled to credit 10 his testimony.” (internal quotations omitted)). While making 11 false statements to flee persecution is consistent with the 12 pursuit of asylum, see Rui Ying Lin v. Gonzales , 445 F.3d 13 127, 134 (2d Cir. 2006), the agency did not err in relying on 14 these false statements because Ismail was not fleeing 15 persecution when he lied to obtain a visa years before the 16 events giving rise to his asylum claim and he lied to border 17 officials after he arrived in the United States. 18 Because Ismail’s credibility was in question, the agency 19 properly looked to his corroborating evidence to determine 20 whether he could meet his burden of proof. See 8 U.S.C. 216 § 1158(b)(1)(B)(ii). Primarily, Ismail produced only copies 1 of documents and stated that his friend who was applying for 2 asylum in New York had the originals, including the original 3 of Ismail’s mother’s affidavit and her death certificate that 4 allegedly proved she died a few years after the 2013 attack 5 as a result of her injuries. The IJ did not err in requiring 6 originals. See Immigration Court Practice Manual, Chapt. 7 3.3(d)(iii) (providing that alien must file photocopies, but 8 must make original documents available at hearings). Nor did 9 the IJ err in finding that Ismail should have presented 10 testimony or a statement his friend who had been at the heart 11 of the events in Ghana. Although Ismail stated that his 12 friend’s lawyer had advised him not to appear as a witness, 13 Ismail did not explain why he had not obtained the originals 14 of the documents or a written statement. See 8 U.S.C. 15 § 1252(b)(4) (stating that a court may not reverse a finding 16 that evidence is available unless a factfinder would be 17 compelled to find it unavailable). 18 Nor did the IJ err in declining to give weight to the 19 photocopies of documents in the record. See Y.C. v. Holder , 20 741 F.3d 324, 332 (2d Cir. 2013) (“We generally defer to the 217 agency’s evaluation of the weight to be afforded an 1 applicant’s documentary evidence.”). The IJ reasonably found 2 that Ismail’s mother’s death certificate was suspect because 3 it listed the cause of death as “severe hand injury and broken 4 legs due to attack” but Ismail’s mother died four years after 5 the attack. The IJ was not required to credit Ismail’s 6 explanation that his mother died from an infection due to the 7 injuries she sustained because there is nothing in the record 8 to confirm that statement, and other medical documents dated 9 2013 reflect that she had a leg fracture and a broken arm, 10 but “got treated and became fit.” Although “the agency 11 cannot base an adverse credibility determination solely on a 12 speculative finding that the applicant has submitted 13 inauthentic documents in support of his application” if the 14 testimony is “otherwise credible, consistent and compelling,” 15 Niang v. Mukasey , 511 F.3d 138, 141 (2d Cir. 2007), the IJ 16 did not err in declining to credit Ismail’s evidence given 17 the credibility problems and lack of original documents. 18 Because Ismail did not demon strate credibility or otherwise 19 meet his burden of proof for asylum, he necessarily did not 20 meet his burden for withholding of removal and CAT relief 218 because all three forms of relief were based on the same 1 factual predicate. See Paul v. Gonzales , 444 F.3d 148, 156- 2 57 (2d Cir. 2006). 3 Motion for a Continuance 4 Ismail challenges the agency’s denial of his motion to 5 continue proceedings to await ruling on adjustment of 6 status by USCIS. After the conclusion of Ismail’s removal 7 proceedings, USCIS denied Ismail’s application. 8 Accordingly, we agree with the government that any 9 challenge to the denial of a continuance is moot. See 10 Qureshi v. Gonzales , 442 F.3d 985, 987-90 (7th Cir. 2006) 11 (“A remand now would effectuate no change in the case 12 [because the] basis for a continuance no longer exists.”); 13 see also Church of Scientology of California v. United 14
States , 506 U.S. 9, 12 (1992) (“[I]f an event occurs while 15 a case is pending on appeal that makes it impossible for 16 the court to grant any effectual relief whatever to a 17 prevailing party, the appeal must be dismissed.” (internal 18 quotation marks omitted)). 19 For the foregoing reasons, the petition for review is 20 DENIED as to asylum, withholding of removal, and CAT relief, 219 and DISMISSED as moot as to the denial of a continuance. All 1 pending motions and applications are DENIED and stays 2
VACATED. 3
FOR THE COURT: 4 Catherine O’Hagan Wolfe, 5 Clerk of Court 6