14-3825

Saleh v. Lynch

BIA

Hom, IJ

A201 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 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.

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

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

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

20th 4 day of January, two thousand sixteen.

5

6 PRESENT:

7 DENNIS JACOBS,

8 PIERRE N. LEVAL,

9 RAYMOND J. LOHIER, JR.,

10 Circuit Judges.

11 _____________________________________

12

13 EL HAFED MOHAMED LEMINE MOHAMED 

14 SALEH, AKA MOHAMED ELHAFED, AKA 

15 ELHAFEDMEDLEMIN MOHAMEDSALEH,

16 Petitioner,

17

18 v. 14-3825

19 NAC

20 LORETTA E. LYNCH, UNITED STATES

21 ATTORNEY GENERAL,

22 Respondent.

23 _____________________________________

24

25 FOR PETITIONER: Bibiana C. Andrade, New York, New 

26 York.

27

28 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 

29 Attorney General, Civil Division; 
2

1 Song Park, Senior Litigation 

2 Counsel; Jessica E. Burns, Trial 

3 Attorney, Office of Immigration 

4 Litigation, United States 

5 Department of Justice, Washington, 

6 D.C.

7

8 UPON DUE CONSIDERATION of this petition for review of a 

9 Board of Immigration Appeals (“BIA”) decision, it is hereby 

10 ORDERED, ADJUDGED, AND DECREED that the petition for review is 

11 DENIED.

12 Petitioner El Hafed Mohamed Lemine Mohamed Saleh, a native 

13 and citizen of Mauritania, seeks review of a September 11, 2014,

14 decision of the BIA affirming a March 21, 2013, decision of an 

15 Immigration Judge (“IJ”) denying Saleh’s application for 

16 asylum, withholding of removal, and relief under the Convention 

17 Against Torture (“CAT”). In re El Hafed Mohamed Lemine Mohamed 

18 Saleh, No. A201 139 894 (B.I.A. Sept. 11, 2014), aff’g No. A201

19 139 894 (Immig. Ct. N.Y. City Mar. 21, 2013). We assume the 

20 parties’ familiarity with the underlying facts and procedural 

21 history in this case.

22 Under the circumstances of this case, we have reviewed both 

23 the IJ’s and the BIA’s opinions “for the sake of completeness.” 

24 Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008). The 
3

1 applicable standards of review are well established. See 

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

3 F.3d 162, 165-66 (2d Cir. 2008).

4 For asylum applications, like Saleh’s, governed by the REAL 

5 ID Act, the agency may, “[c]onsidering the totality of the 

6 circumstances,” base a credibility finding on inconsistencies 

7 and omissions in an applicant’s statements and other record 

8 evidence “without regard to whether” they go “to the heart of 

9 the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu 

10 Xia Lin, 534 F.3d at 163-64, 167. Omissions are “functionally 

11 equivalent” to inconsistencies, and “can serve as a proper basis 

12 for an adverse credibility determination.” Xiu Xia Lin, 534 

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

14 determination that Saleh was not credible. 

15 The IJ considered the inconsistency between Saleh’s 

16 testimony that his second arrest occurred on August 27, 2010,

17 and his application, which stated this arrest occurred on July 

18 27, 2010. When confronted with this discrepancy, Saleh 

19 initially responded that he was arrested in August, but then 

20 that he was arrested in July and came to the United States in 

21 August. As Saleh did not actually explain this discrepancy, 
4

1 a reasonable fact-finder would not be compelled to credit his 

2 explanation. Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 

3 2005).

4 A second inconsistency involved Saleh’s testimony 

5 regarding why he was targeted by the Mauritanian government. 

6 He first stated that he was “targeted by the government” because 

7 his “family used to own a slave” and he went “against . . . [his] 

8 family,” but then stated that his tribe might target him. 

9 Despite additional questioning, it remains unclear who might 

10 target Saleh: the government or his tribe. The record thus 

11 supports the IJ’s finding that Saleh provided “different 

12 versions” of who might target him.

13 The IJ also cited two omissions in Saleh’s asylum 

14 application: that he was electrocuted by police after his second 

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

16 Saleh stated he omitted this information because he was told 

17 that he would have an opportunity to testify and elaborate on 

18 his claims. However, these omissions are significant; the 

19 mistreatment by police after his second arrest was the only harm 

20 he suffered in Mauritania. The type of harm and the extent of 

21 his injuries are therefore substantial omissions that were 
5

1 properly considered. Secaida-Rosales v. INS, 331 F.3d 297, 308 

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

3 534 F.3d 162 (2d Cir. 2008); cf. Pavlova v. INS, 441 F.3d 82, 

4 90 (2d Cir. 2006).

5 A third omission cited by the IJ is that Saleh’s application

6 failed to include “information about being the target of the 

7 police for his anti-slavery activities.” This finding is weak: 

8 Saleh described his anti-slavery activities and mentioned that 

9 he was questioned about them. However, he did not demonstrate 

10 that he was targeted or persecuted for that activity. Even 

11 disregarding this finding, the “totality of the circumstances” 

12 supports the adverse credibility determination given the 

13 inconsistencies regarding the date of Saleh’s second arrest, 

14 the reason he was targeted, and the omissions from his 

15 application about the type and severity of harm by police. Xiu 

16 Xia Lin, 534 F.3d at 167.

17 The agency properly considered Saleh’s lack of 

18 corroborating evidence. See Biao Yang v. Gonzales, 496 F.3d 

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

20 not to admit into evidence the untimely-submitted newspaper 

21 article. 8 C.F.R. § 1003.31(c). In addition, as Saleh 
6

1 testified that a U.S. doctor examined his injured ear, the 

2 agency reasonably considered the absence of any medical 

3 documentation to corroborate Saleh’s testimony. Yan Juan Chen 

4 v. Holder, 658 F.3d 246, 252-53 (2d Cir. 2011). Saleh submitted 

5 a letter from the president of an anti-slavery organization and 

6 a statement by his wife. The agency could give little weight 

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

8 available for cross-examination and Saleh’s wife did not 

9 indicate she had personal knowledge of the events she discussed. 

10 Cf. Kulhawik v. Holder, 571 F.3d 296, 298 (2d Cir. 2009) 

11 (personal knowledge); In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 

12 209, 215 (B.I.A. 2010) (availability for cross-examination), 

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

14 (2d Cir. 2012). Finally, the IJ properly considered a 2010 U.S. 

15 Department of State report, which stated that the Mauritanian 

16 government was involved in programs to eradicate the effects 

17 of slavery and restore rights to former slaves. Xiao Ji Chen 

18 v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006). As 

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

20 In light of the inconsistencies, omissions, and lack of 

21 corroboration, the “totality of the circumstances” supports the 
7

1 IJ’s adverse credibility determination. Xiu Xia Lin, 534 F.3d 

2 at 167. This finding was sufficient to deny asylum, 

3 withholding of removal, and CAT relief, as all three forms of 

4 relief relied on the same factual predicate. See Paul v. 

5 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v. 

6 U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).

7 For the foregoing reasons, the petition for review is 

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

9 that the Court previously granted in this petition is VACATED, 

10 and any pending motion for a stay of removal in this petition 

11 is DISMISSED as moot. Any pending request for oral argument 

12 in this petition is DENIED in accordance with Federal Rule of 

13 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 

14 34.1(b).

15 FOR THE COURT: 

16 Catherine O=Hagan Wolfe, Clerk