09-1049-ag

Musenge v. Holder BIA Rocco,IJ A076 100 748 

### UNITED STATES COURT OF AP PEALS FOR THE SE COND CIRCU IT 

# SUM MARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY O RDER 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. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 28 day of June, two thousand ten. th 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 ROBERT A. KATZMANN, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges . 11

_____________________________________ 12 13 DONATE LUYOMBYA MUSENGE, 14 Petitioner , 15 16 v. 09-1049-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent . 21

_____________________________________ 22 23 FOR PETITIONER: pro se 24 25 FOR RESPONDENT: Tony West, Assistant Attorney 26 General; Michelle G. Latour, 27 Assistant Director; Sunah Lee, Trial 28 Attorney, Office of Immigration 29 Litigation, United States Department 30 of Justice, Washington, D.C.2 1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED, that the petition for review 4 is DENIED. 5 Donate Luyombya Musenge, a native and citizen of the 6 Democratic Republic of the Congo, seeks review of a February 7 19, 2009, order of the BIA, affirming on remand the December 8 20, 2002, decision of Immigration Judge (“IJ”) Michael 9 Rocco, which denied his application for asylum, withholding 1 0 of removal, and relief under the Convention Against Torture. 11 In re Musenge , No. A076 100 748 (B.I.A. Feb. 19, 2009), 12 aff’gNo. A076 100 748 (Immig. Ct. Buffalo Dec. 20, 2002). 1 3 We assume the parties’ familiarity with the underlying facts 1 4 and procedural history in this case. 1 5 Under the circumstances of this case, we review the 1 6 BIA’s decision alone. See Belortaja v. Gonzales, 484 F.3d 1 7 619, 622-23 (2d Cir. 2007). The applicable standards of 1 8 review are well-established. See Shu Wen Sun v. BIA , 510 1 9 F.3d 377, 379 (2d Cir. 2007); Salimatou Bah v. Mukasey , 529 2 0 F.3d 99, 110 (2d Cir. 2008). 2 1 Because we are called upon to review findings that we 2 2 adjudicated previously, under the law of the case doctrine3 1 we follow our earlier holdings, unless “cogent and 2 compelling reasons militate otherwise.” See United States 3 v. Quintieri , 306 F.3d 1217, 1225 (2d Cir. 2002) (internal 4 quotation marks and citations omitted). In 2006, we held 5 that while two of the grounds supporting the IJ’s adverse 6 credibility determination were erroneous, the finding that 7 the date of issuance on the marriage certificate conflicted 8 with Musenge’s testimony was: (1) “supported by the record”; 9 (2) “serious”; and (3) “[went] to the heart of [Musenge]’s 1 0 claim” insofar as it “undermine[d] his claim to ever have 1 1 been imprisoned.” Musenge v. BCIS , 196 Fed. App’x 29, 30 1 2 (2d Cir. 2006) (unpublished). We nevertheless remanded 1 3 Musenge’s case to the BIA because we could not “state with 1 4 confidence that the IJ would adhere to his decision” on the 1 5 basis of the non-erroneous finding alone. Musenge , 196 Fed. 1 6 App’x at 30-31 (quoting Xiao Ji Chen v. U.S. Dep’t of 17 Justice , 434 F.3d 144, 161 (2d Cir. 2006) ( revised in other 18 part and reissuedat 471 F.3d 315 (2d Cir. 2006))). 1 9 On remand, the BIA clarified that the IJ’s single non2 0 erroneous finding supported an overall adverse credibility 2 1 determination. Thus, we are now called upon to determine 2 2 whether substantial evidence supports that determination.4 1 We conclude that it does. Accordingly, the agency did not 2 err in denying Musenge’s application for asylum, withholding 3 of removal, and CAT relief based on its adverse credibility 4 determination, insofar as each of those claims shared the 5 same factual predicate. See Paul v. Gonzales , 444 F.3d 148, 6 156 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice , 7 426 F.3d 520, 523 (2d Cir. 2006). Because the agency’s 8 adverse credibility finding is dispositive of Musenge’s 9 application for asylum, withholding of removal, and CAT 1 0 relief, we decline to address the agency’s alternative nexus 1 1 finding.

For the foregoing reasons, the petition for review is 12 1 3 DENIED. As we have completed our review, any stay of 1 4 removal that the Court previously granted in this petition 1 5 is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any 1 6 pending request for 1 7 oral argument in this petition is DENIED in accordance with 1 8 Federal Rule of Appellate Procedure 34(a)(2), and Second 1 9 Circuit Local Rule 34.1(b). 2 0 FOR THE COURT: Catherine O’Hagan Wolfe, Clerk 21 22