10-2785-ag BIA Barre v. Holder Montante, IJ A099 656 575/576



### 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.** At a stated term of the United States Court of Appeals for 1 the Second Circuit, held at the Daniel Patrick Moynihan United 2 States Courthouse, 500 Pearl Street, in the City of New York, on 3 the 17 thday of April, two thousand twelve. 4 5 PRESENT: 6 DENNIS JACOBS, 7 Chief Judge, 8 ROSEMARY S. POOLER, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges

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_______________________________________ 12 13 SEINAB ABDI BARRE, ABDIWALI 14 SHEIKH ABDULLAHI, 15 16 Petitioners , 17 18 v. 10-2785-ag 19 NAC 20 ERIC H. HOLDER, JR., UNITED STATES 21 ATTORNEY GENERAL, 22 23 Respondent

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_______________________________________ 25 26 FOR PETITIONER: Carlos E. Estrada, Boston, 27 Massachusetts. 28 29 30 31

### 2 FOR RESPONDENT: Tony West, Assistant Attorney General; 1 Allen W. Hausman, Senior Litigation 2 Counsel; Kevin J. Conway, Attorney, 3 Office of Immigration Litigation, United 4 States Department of Justice, 5 Washington, 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 petition for review is 10

DENIED. 11 Seinab Abdi Barre and Abdiwali Sheikh Abdullahi, natives and 12 citizens of Somalia, seek review of a June 15, 2010, decision of 13 the BIA affirming the July 1, 2008, decision of Immigration Judge 14 (“IJ”) Philip J. Montante, Jr., which denied Seinab Abdi Barre’s 15 application for asylum and withholding of removal, on which 16 Abdiwali Sheikh Abdullahi was named as a derivative beneficiary. 17 In re Seinab Abdi Barre , Abdiwali Sheikh Abdullahi,Nos. A099 656 18 575/576 (B.I.A. June 15, 2010),aff’gNos. A099 656 575/576 19 (Immig. Ct. Buffalo, NY July 1, 2008). We assume the parties’ 20 familiarity with the underlying facts and procedural history in 21 this case. 22 Under the circumstances of this case, we have reviewed the 23 IJ’s decision as modified by the BIA decision. See Xue Hong Yang 24 v. U.S. Dep’t of Justice , 426 F.3d 520, 522 (2d Cir. 2005). The 25 applicable standards of review are well-established. See8 26 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 27 (2d Cir. 2009). 28

### 3 For asylum applications governed by the amendments made to 1 the Immigration and Nationality Act (“INA”) by the REAL ID Act of 2 2005, the agency may, considering the totality of the 3 circumstances, base a credibility finding on an asylum 4 applicant’s demeanor, the plausibility of his or her account, and 5 inconsistencies in his or her statements, without regard to 6 whether they go “to the heart of the applicant’s claim.” 8 7 U.S.C. § 1158(b)(1)(B)(iii). Under the substantial evidence 8 standard, we treat adverse credibility determinations as 9 “conclusive unless any reasonable adjudicator would be compelled 10 to conclude to the contrary” and will “defer . . . to an IJ’s 11 credibility determination unless, from the totality of the 12 circumstances, it is plain that no reasonable fact-finder could 13 make such an adverse credibility ruling.” 8 U.S.C. 14 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d 15 Cir. 2008); see also Shi Jie Ge v. Holder, 588 F.3d 90, 93-94 (2d 16 Cir. 2009). In this case, the IJ reasonably based his adverse 17 credibility determination on the omissions and discrepancies in 18 Barre’s asylum application and her testimony. 19 A comparison of Barre’s asylum application and her testimony 20 shows discrepancies as to when her brothers and husband were 21 killed; an omission in her testimony that the Somalian government 22 had briefly detained her brother; and an omission that he had 23 been beaten by officers demanding moneys to the point that he 24

### 4 needed medical attention upon release. In finding Barre not 1 credible, the IJ pointed to these omissions and inconsistencies, 2 finding that the “testimony was conflicting and inconsistent or 3 contained a material omission on one or more occasions.” The 4 BIA, in turn, noted that the IJ “made an adverse credibility 5 finding based upon material and significant inconsistencies 6 between [Barre’s] testimony and her asylum application. . . . 7 regarding when her husband and brothers died, and that she failed 8 to testify about certain details which were included in her 9 asylum application” and affirmed the IJ’s adverse credibility 10 determination on those bases. The agency’s findings regarding 11 inconsistencies and omissions in the record are supported by 12 substantial evidence, and those inconsistencies and omissions 13 were proper grounds for its adverse credibility finding. See8 14 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. 15 While the agency decisions in this case are not without flaw 16 -- we note, in particular, that the IJ neglected to put Barre on 17 notice as to the discrepancies upon which he relied in finding 18 her not credible -- remand here would be futile because it is 19 clear “that the same decision would have been reached in the 20 absence of the errors.” See Cao He Lin v. U.S Dep’t of Justice, 21 428 F.3d 391, 402 (2d Cir. 2005); see also Xiao Ji Chen v. U.S. 22 Dep’t of Justice , 471 F.3d 315, 338 (2d Cir. 2006) (“[A]n error 23 does not require a remand if the remand would be pointless 24

### 5 because it is clear that the agency would adhere to its prior 1 decision in the absence of error.”). Ultimately, substantial 2 evidence supports the agency’s adverse credibility determination, 3 and, accordingly, we will defer to its finding. See8 U.S.C. 4 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. Because the 5 adverse credibility determination is dispositive of Barre’s 6 claim, we do not reach the agency’s finding regarding future 7 persecution on account of membership in a particular social 8

group. 9 For the foregoing reasons, the petition for review is 10 DENIED. As we have completed our review, the pending motion for 11 a stay of removal in this petition is DISMISSED as moot. 12 13
FOR THE COURT: 14 Catherine O’Hagan Wolfe, Clerk 15 16 17