16-2625 Guediara v. Sessions BIA Sichel, IJ A089 193 531 

### 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 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 **8 th**  **day of November, two thousand seventeen.** 4 5 **PRESENT:** 6 **JON O. NEWMAN,** 7 **RICHARD C. WESLEY,** 8 **DEBRA ANN LIVINGSTON,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **MOUSSA GUEDIARA, AKA YAYA CAMARA,** 13 Petitioner **,** 14 15 **v. 16-2625** 16 **NAC** 17 **JEFFERSON B. SESSIONS III,** 18 **UNITED STATES ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Gary J. Yerman, New York, NY. 23 24 **FOR RESPONDENT:** Chad A. Readler, Acting Assistant 25 Attorney General; Jessica A. 26 Dawgert, Senior Litigation Counsel; 27 Yanal H. Yousef, Trial Attorney, 28 Office of Immigration Litigation, 29 United States Department of Justice, 30 Washington, DC. 312 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review is 3

DENIED. 4 Petitioner Moussa Guediara, a native and citizen of Côte 5 d’Ivoire, seeks review of a June 30, 2016, decision of the BIA 6 affirming a May 12, 2015, decision of an Immigration Judge 7 (“IJ”) denying Guediara’s application for asylum, withholding 8 of removal, and relief under the Convention Against Torture 9 (“CAT”). In re Moussa Guediara , No. A089 193 531 (B.I.A. June 10 30, 2016), aff’g No. A089 193 531 (Immig . Ct. N.Y. City May 12, 11 2015). We assume the parties’ familiarity with the underlying 12 facts and procedural history in this case. 13 When the BIA summarily affirms the IJ’s decision, we review 14 the IJ’s decision, as modified by the BIA, i.e., minus the 15 findings regarding timeliness and changed circumstances that 16 the BIA did not reach. See Xue Hong Yang v. U.S. Dep’t of 17 Justice , 426 F.3d 520, 522 (2d Cir. 2005). Petitioner raises 18 two issues on appeal: (1) whether the agency erred in relying 19 on fingerprint evidence from the Department of Homeland 20 Security (“DHS”); and (2) whether substantial evidence supports 21 the agency’s determination that Guediara was not credible. 223 **I. Admission of Fingerprint Evidence**  1 “The due process test for admissibility of evidence in a 2 deportation hearing is whether the evidence is probative and 3 whether its use is fundamentally fair.” Felzcerek v. INS , 75 4 F.3d 112, 115 (2d Cir. 1996) (internal quotation marks omitted). 5 “In the evidentiary context, fairness is closely related to the 6 reliability and trustworthiness of the evidence.” Id . While 7 “the strict rules of evidence do not apply in deportation 8 proceedings,” a document’s “admissibility under the Federal 9 Rules of Evidence lends strong support to the conclusion that 10 admission of the evidence comports with due process.” Id. at 11 116. “Records made by public officials in the ordinary course 12 of their duties . . . evidence strong indicia of reliability. 13 . . . because public officials are presumed to perform their 14 duties properly and generally lack a motive to falsify 15 information.” Id. ; see also Barradas v. Holder , 582 F.3d 754, 16 763 (7th Cir. 2009) (“[W]hen the evidence introduced is that 17 recorded by a DHS agent in a public record, the absent agent 18 cannot be presumed to be an unfriendly witness or other than 19 an accurate recorder. Establishing an automatic right to 20 cross-examine the preparers of such documents would place an 21 unwarranted burden on the DHS.” (internal citations and 224 quotation marks omitted)). A petitioner can overcome this 1 presumption by providing evidence that undermines the 2 reliability of the official records in question. Felzcerek , 3 75 F.3d at 117. 4 The fingerprint evidence in this case—printouts from a DHS 5 database tracking the entry of aliens into the United States—are 6 official records prepared by DHS agents in the ordinary course 7 of their duties. Because these official records are presumed 8 to be reliable, id . at 116, and Guediara did not introduce any 9 evidence calling into question their reliability (such as 10 evidence of tampering or mistake), DHS was not required to call 11 a witness to document the chain of custody or preparation of 12 the records. 13 Furthermore, DHS called a fingerprint specialist whom 14 Guediara had an opportunity to cross examine. While Woods did 15 not have personal knowledge of the preparation or chain of 16 custody of the fingerprints, his testimony helped to establish 17 the records’ reliability by describing how he obtained the 18 fingerprints from the DHS database, confirming that the prints 19 did not match, and explaining that the database would 20 automatically consolidate matching fingerprints even if an 21 individual gave a different name. Ultimately, it was up to the 225 IJ to weigh the DHS evidence and Woods’s testimony against 1 Guediara’s conflicting testimony regarding his date of entry. 2 Y.C. v. Holder , 741 F.3d 324, 334 (2d Cir. 2013) (“We defer to 3 the agency’s determination of the weight afforded to an alien’s 4 documentary evidence.”). We find no error in the agency’s 5 admission of the DHS fingerprint evidence. 6

**II. Adverse Credibility Ruling**  7 We review the agency’s credibility determination for 8 substantial evidence. Xiu Xia Lin v. Mukasey , 534 F.3d 162, 165 9 (2d Cir. 2008); see also 8 U.S.C. § 1252(b)(4). The agency 10 may, “[c]onsidering the totality of the circumstances,” base 11 an adverse credibility finding on inconsistencies between an 12 asylum applicant’s testimony and other record evidence. 13 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 F.3d at 167. 14 Credibility rulings are “conclusive unless any reasonable 15 adjudicator would be compelled to conclude to the contrary.” 16 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin , 534 F.3d at 165. 17 The fingerprint evidence contradicting Guediara’s 18 testimony about his date and manner of entry constitutes 19 substantial evidence supporting the adverse credibility 20 determination. The discrepancy a bout Guediara’s arrival 21 called into question when he entered the United States and 226 whether he was in Côte d’Ivoire at the time of his alleged 1 persecution, thereby calling into question the entirety of his 2 claim. See Siewe v. Gonzales , 480 F.3d 160, 170 (2d Cir. 2007) 3 (“[A] single false document or a single instance of false 4 testimony may (if attributable to petitioner) infect the 5 balance of the alien’s unco rroborated or unauthenticated 6 evidence.”). Guediara’s speculation that there may have been 7 another individual named Yaya Camara who entered the United 8 States on the same day does not resolve the issue because it 9 does not account for the lack of any entry record with 10 fingerprints matching Guediara’s. See Majidi v. Gonzales , 430 11 F.3d 77, 80-81 (2d Cir. 2005) (“A petitioner must do more than 12 offer a plausible explanation for his inconsistent statements 13 to secure relief; he must demonstrate that a reasonable 14 fact-finder would be compelled to credit his testimony.” 15 (internal quotation marks omitted)). 16 Furthermore, Guediara did not rehabilitate this testimony. 17 See Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 2007) (“An 18 applicant’s failure to corroborate his or her testimony may bear 19 on credibility, because the absence of corroboration in general 20 makes an applicant unable to rehabilitate testimony that has 21 already been called into question.”). While his certificate 227 of citizenship and attestation of identity corroborated his 1 Ivorian identity, the documents did not show he was in Cote 2 d’Ivoire in 2006, when the alleged persecution occurred, or show 3 when he entered the United States. As the IJ found, Guediara’s 4 timeline was further undermined by other documentary evidence: 5 the signature on a 2006 certificate allegedly reflecting the 6 sale of his business did not match Guediara’s signature on his 7 asylum application; and Guediara submitted a political 8 membership card for 2004-2005 but not for 2006-2007. 9 Given the discrepancy between Guediara’s testimony and the 10 fingerprint evidence regarding his entry date as well as the 11 lack of corroborating evidence, the totality of the 12 circumstances supports the adverse credibility ruling. 13 8 U.S.C. § 1158(b)(1)(B)(iii); Siewe , 480 F.3d at 170; Biao 14 Yang , 496 F.3d at 273. Because Guediara’s claims were all based 15 on the same factual predicate, the adverse credibility 16 determination is dispositive of asylum, withholding of removal, 17 and CAT relief. See Paul v. Gonzales , 444 F.3d 148, 156-57 (2d 18 Cir. 2006). 19 For the foregoing reasons, the petition for review is 20 DENIED. As we have completed our rev iew, any stay of removal 21 that the Court previously granted in this petition is VACATED, 228 and any pending motion for a stay of removal in this petition 1 is DISMISSED as moot. Any pending request for oral argument 2 in this petition is DENIED in accordance with Federal Rule of 3 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 4 34.1(b). 5

FOR THE COURT: 6 Catherine O’Hagan Wolfe, Clerk 7