09-1049-ag

Musenge v. Holder

BIA

Rocco, IJ

A076 100 748

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 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

10 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’g No. A076 100 748 (Immig. Ct. Buffalo Dec. 20, 2002). 

13 We assume the parties’ familiarity with the underlying facts

14 and procedural history in this case. 

15 Under the circumstances of this case, we review the

16 BIA’s decision alone. See Belortaja v. Gonzales, 484 F.3d

17 619, 622-23 (2d Cir. 2007). The applicable standards of

18 review are well-established. See Shu Wen Sun v. BIA, 510

19 F.3d 377, 379 (2d Cir. 2007); Salimatou Bah v. Mukasey, 529

20 F.3d 99, 110 (2d Cir. 2008). 

21 Because we are called upon to review findings that we

22 adjudicated previously, under the law of the case doctrine
3

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

10 claim” insofar as it “undermine[d] his claim to ever have

11 been imprisoned.” Musenge v. BCIS, 196 Fed. App’x 29, 30

12 (2d Cir. 2006) (unpublished). We nevertheless remanded

13 Musenge’s case to the BIA because we could not “state with

14 confidence that the IJ would adhere to his decision” on the

15 basis of the non-erroneous finding alone. Musenge, 196 Fed.

16 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 reissued at 471 F.3d 315 (2d Cir. 2006))). 

19 On remand, the BIA clarified that the IJ’s single non20 erroneous finding supported an overall adverse credibility

21 determination. Thus, we are now called upon to determine

22 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

10 relief, we decline to address the agency’s alternative nexus

11 finding. 

12 For the foregoing reasons, the petition for review is

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

14 removal that the Court previously granted in this petition

15 is VACATED, and any pending motion for a stay of removal in

16 this petition is DISMISSED as moot. Any pending request for

17 oral argument in this petition is DENIED in accordance with

18 Federal Rule of Appellate Procedure 34(a)(2), and Second

19 Circuit Local Rule 34.1(b).

20 FOR THE COURT: 

21 Catherine O’Hagan Wolfe, Clerk

22