14

- 3825 Saleh v. Lynch BIA Hom , IJ A 201 139 894 

### 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 COU**  **RT, 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 for**  1 **the Second Circuit, held at the Thurgood Marshall United States**  2 **Courthouse, 40 Foley Square, in the City of New York, on the**  3 **20 th**  **da y**  **of January**  **, two thousand**  **sixteen**
**.** 4 5 **PRESENT:** 6 **DENNIS JACOBS,** 7 **PIERRE N. LEVAL,** 8 **RAYMOND J. LOHIER, JR.,** 9 **Circuit Judges.** 10

**_____________________________________** 11 12 **EL HAFED MOHAMED LEMINE MOHAMED** 13 **SALEH ,**  **AKA MOHAMED ELHAFED, AKA** 14 **ELHAFEDMEDLEMIN MOHAMEDSALEH ,**  15 **Petitioner ,**  16 17

**v. 14** 
**- 3825**  18 **NAC** 19 **LORETTA E. LYNCH , UNITED STATES**  20 **ATTORNEY GENERAL ,**  21 **Respondent .**  22

**_____________________________________** 23 24 **FOR PETITIONER :**  Bibiana C. Andrade , New York, New 25 York

. 26 27 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 28 Attorney General, Civil Division; 292 Song Park, Senior Litigation 1 Counsel; Jessica E. Burns, Trial 2 Attorney , Office of Immigration 3 Litigation , United States 4 Department of Justice, Washington, 5 D.C. 6 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 petitio n for review is 10

DENIED. 11

Petitioner El Hafed Mohamed Lemine Mohamed Saleh , a native 12

and citizen of Mauritania , seeks review of a September 11, 2014, 13
decision of the BIA affirming a March 21, 2013 , decisi on of an 14
Immigration Judge (“IJ”) denying Saleh ’s application for 15
asylum, withholding of removal , and relief under the Convention 16
Against Torture (“CAT”). In re El Hafed Mohamed Lemine Mohamed 17

Saleh , No. A 201 139 894 (B.I.A. Sept. 11, 2014 ), aff’g No. A 201 18

139 894 (Immig. Ct. N.Y. City Mar. 21, 2013 ). We assume the 19
parties’ familiarity with the underlying facts and procedural 20
history in this case. 21

Under the circumstances of this case, we have reviewed both 22
the IJ’s and the BIA’s opinions “for the sake o f completeness.” 23
Zaman v. Mukasey , 514 F.3d 233, 237 (2d Cir. 2008). The 243 applicable standards of review are well established. See 1

8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey , 534 2

F.3d 162, 165

- 66 (2d Cir. 2008). 3
For asylum applications, li ke Saleh ’s, governed by the REAL 4
ID Act, the agency may, “[c]onsidering the totality of the 5
circumstances,” base a credibility finding on inconsistencies 6
and omissions in an applicant’s statements and other record 7
evidence “without regard to whether” they go “to the heart of 8
the applicant’s claim. ” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu 9

Xia Lin , 534 F.3d at 163

- 64, 167. Omissions are “functionally 10
equivalent” to inconsistencies, and “can serve as a proper basis 11
for an adverse credibility determination.” Xiu Xia Lin , 534 12

F.3d at 166 n.3. Substantial evidence supports the agency’s 13

determination that Saleh was not credible. 14

T he IJ considered the inconsistency between Saleh’s 15
testimony that his second arrest occurred on August 27, 2010 , 16
and his application, w hich stated this arrest occurred on July 17
27, 2010. When confronted with this discrepancy, Saleh 18
initially responded that he was arrested in August, but then 19

that he was arrested in July and came to the United States in 20
August. As Saleh did not actually e xplain t his discrepancy , 214 a reasonable fact

- finder would not be compelled to credit his 1
explanation

. Majidi v. Gonzales , 430 F.3d 77, 80

- 81 (2d Cir. 2

2005)

. 3
A second inconsistency involved Saleh’s testimony 4
regarding why he was targeted by the Mauritanian government. 5
He first stated that he was “target ed by the government” because 6

his “family used to own a slave” and he went “against . . . [his] 7
family,” but then stated that his tribe might target him. 8
Despite additional questioning, it remains unclear wh o might 9
target Saleh: the government or his tribe. The record thus 10
supports the IJ’s finding that Saleh provided “different 11
versions” of who might target him. 12

The IJ also cited two o missions in Saleh’s asylum 13
application: that he was electrocuted by police after his second 14

arrest, and that police abuse caused him persisting ear pain. 15

Saleh stated he omitted this information because he was told 16
that he would have an opportunity to testify and elaborate on 17

his claims. However, the se omissions are significant; the 18
mistreatment by police after his second arrest wa s the o nly harm 19

he suffer ed in Mauritania. T he type of harm and the extent of 20
his injuries are therefore substantial omissions that were 215 properly considered. Secaida

- Rosal es v. INS , 331 F.3d 297, 308 1

(2d Cir. 2003), abrogated in part by Xiu Xia Lin v. Mukasey , 2

534 F.3d 162 (2d Cir. 2008); cf. Pavlova v. INS , 441 F.3d 82, 3
90 (2d Cir. 2006). 4
A third omission cited by the IJ is that Saleh ’s application 5

failed to include “information about being the target of the 6
police for his anti

- slavery activiti es
. ” This finding is weak: 7

Saleh described his anti

- slavery activities and mentioned that 8
he was questioned about them. However, he did not demonstrate 9
that he was targeted or persecuted for that activity. Even 10
disregarding this finding, the “totality of the circumstances” 11
supports the adverse credibility determination given the 12
inconsistencies regarding the date of Saleh’s second arrest, 13
the reason he was targeted, and the omissions from his 14
application about the type and severity of harm by police. Xiu 15

Xia Lin , 534 F.3d at 167

. 16
The agency properly considered Saleh’s lack of 17
corroborating evidence. See Biao Yang v. Gonzales , 496 F.3d 18

268, 273 (2d Cir. 2007). The IJ acted within his discretion 19

not to admit into evidence the untimely

- submitted newspaper 20

article. 8 C.F.R. § 1003.31(c). In addition, as Saleh 216 testified that a U.S. doctor examined his injured ear, the 1
agency reasonably considered the absence of any medical 2

documentation to corroborate Saleh’s testimony

. Yan Juan Chen 3

v. Holder , 658 F.3d 246, 252

- 53 (2d Cir. 2011). Saleh submitted 4
a letter from the president of an anti

- slavery organizati on and 5

a statement by his wife. T he agency could give litt le weight 6

to these documents because the author of the letter was not 7

available for cross

- examination and Saleh’s wife did not 8
indicate she had personal knowledge of the events she discussed. 9

Cf. Kulhawik v. Holder , 571 F.3d 296, 298 (2d Cir. 2009) 10
(personal knowledge); In re H

- L

- H

- & Z

- Y

- Z

- , 25 I. & N. Dec. 11

209, 215 (B

. I

. A

. 2010) (availability for cross

- examination), 12
rev’d on other grounds by Hui Lin Huang v. Holder , 677 F.3d 130 13

(2d Cir. 2012 ). Finally, the IJ properly considered a 2010 U.S. 14
Department of State report, which stated that the Mauritanian 15
government was involved in programs to eradicate the effects 16
of slavery and restore rights to former slaves. Xiao Ji Chen 17
v. U.S. Dep’t of Ju stice , 471 F.3d 315, 342 (2d Cir. 2006). As 18

the agency determined, this report undercut Saleh’s claim. 19

In l ight of the inconsistencies, omissions , and lack of 20
corroboration, the “totality of the circumstances” supports the 217 IJ’s adverse credibility determination. Xiu Xia Lin , 534 F.3d 1
at 167. This finding was sufficient to deny asylum, 2
withholding of removal, and CAT relief, as all three forms of 3
relief relied on the same factual predicate. See Paul v. 4

Gonzales , 444 F.3d 1 48, 156 (2d Cir. 2006); Xue Hong Yang v. 5
U.S. Dep’t of Justice , 426 F.3d 520, 523 (2d Cir. 2005). 6
For the foregoing reasons, the petition for review is 7
DENIED. As we have completed our review, any stay of removal 8
that the Court previously granted in this petition is VACATED, 9
and any pending motion for a stay of removal in this petition 10
is DISMISSED as moot. Any pending request for oral argument 11
in this petition is DENIED in accordance with Federal Rule of 12
Appellate Procedure 34(a)(2), and Second Circuit Local Rule 13

34.1(b). 14

FOR THE COURT: 15 Catherine O = Hagan Wolfe, Clerk 16