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.

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

2 the Second Circuit, held at the Daniel Patrick Moynihan United

3 States Courthouse, 500 Pearl Street, in the City of New York, on

the 17th 4 day of April, two thousand twelve.

5

6 PRESENT:

7 DENNIS JACOBS,

8 Chief Judge,

9 ROSEMARY S. POOLER,

10 DEBRA ANN LIVINGSTON,

11 Circuit Judges. 

12 _______________________________________

13

14 SEINAB ABDI BARRE, ABDIWALI 

15 SHEIKH ABDULLAHI,

16

17 Petitioners, 

18

19 v. 10-2785-ag

20 NAC 

21 ERIC H. HOLDER, JR., UNITED STATES

22 ATTORNEY GENERAL,

23

24 Respondent.

25 _______________________________________

26

27 FOR PETITIONER: Carlos E. Estrada, Boston,

28 Massachusetts.

29

30

31
2

1 FOR RESPONDENT: Tony West, Assistant Attorney General;

2 Allen W. Hausman, Senior Litigation

3 Counsel; Kevin J. Conway, Attorney,

4 Office of Immigration Litigation, United

5 States Department of Justice,

6 Washington, 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 Seinab Abdi Barre and Abdiwali Sheikh Abdullahi, natives and

13 citizens of Somalia, seek review of a June 15, 2010, decision of

14 the BIA affirming the July 1, 2008, decision of Immigration Judge

15 (“IJ”) Philip J. Montante, Jr., which denied Seinab Abdi Barre’s

16 application for asylum and withholding of removal, on which

17 Abdiwali Sheikh Abdullahi was named as a derivative beneficiary. 

18 In re Seinab Abdi Barre, Abdiwali Sheikh Abdullahi, Nos. A099 656

19 575/576 (B.I.A. June 15, 2010), aff’g Nos. A099 656 575/576

20 (Immig. Ct. Buffalo, NY July 1, 2008). We assume the parties’

21 familiarity with the underlying facts and procedural history in

22 this case.

23 Under the circumstances of this case, we have reviewed the

24 IJ’s decision as modified by the BIA decision. See Xue Hong Yang

25 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The

26 applicable standards of review are well-established. See 8

27 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

28 (2d Cir. 2009). 
3

1 For asylum applications governed by the amendments made to

2 the Immigration and Nationality Act (“INA”) by the REAL ID Act of

3 2005, the agency may, considering the totality of the

4 circumstances, base a credibility finding on an asylum

5 applicant’s demeanor, the plausibility of his or her account, and

6 inconsistencies in his or her statements, without regard to

7 whether they go “to the heart of the applicant’s claim.” 8

8 U.S.C. § 1158(b)(1)(B)(iii). Under the substantial evidence

9 standard, we treat adverse credibility determinations as

10 “conclusive unless any reasonable adjudicator would be compelled

11 to conclude to the contrary” and will “defer . . . to an IJ’s

12 credibility determination unless, from the totality of the

13 circumstances, it is plain that no reasonable fact-finder could

14 make such an adverse credibility ruling.” 8 U.S.C.

15 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d

16 Cir. 2008); see also Shi Jie Ge v. Holder, 588 F.3d 90, 93-94 (2d

17 Cir. 2009). In this case, the IJ reasonably based his adverse

18 credibility determination on the omissions and discrepancies in

19 Barre’s asylum application and her testimony. 

20 A comparison of Barre’s asylum application and her testimony

21 shows discrepancies as to when her brothers and husband were

22 killed; an omission in her testimony that the Somalian government

23 had briefly detained her brother; and an omission that he had

24 been beaten by officers demanding moneys to the point that he
4

1 needed medical attention upon release. In finding Barre not

2 credible, the IJ pointed to these omissions and inconsistencies,

3 finding that the “testimony was conflicting and inconsistent or

4 contained a material omission on one or more occasions.” The

5 BIA, in turn, noted that the IJ “made an adverse credibility

6 finding based upon material and significant inconsistencies

7 between [Barre’s] testimony and her asylum application. . . .

8 regarding when her husband and brothers died, and that she failed

9 to testify about certain details which were included in her

10 asylum application” and affirmed the IJ’s adverse credibility

11 determination on those bases. The agency’s findings regarding

12 inconsistencies and omissions in the record are supported by

13 substantial evidence, and those inconsistencies and omissions

14 were proper grounds for its adverse credibility finding. See 8

15 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. 

16 While the agency decisions in this case are not without flaw

17 -- we note, in particular, that the IJ neglected to put Barre on

18 notice as to the discrepancies upon which he relied in finding

19 her not credible -- remand here would be futile because it is

20 clear “that the same decision would have been reached in the

21 absence of the errors.” See Cao He Lin v. U.S Dep’t of Justice,

22 428 F.3d 391, 402 (2d Cir. 2005); see also Xiao Ji Chen v. U.S.

23 Dep’t of Justice, 471 F.3d 315, 338 (2d Cir. 2006) (“[A]n error

24 does not require a remand if the remand would be pointless
5

1 because it is clear that the agency would adhere to its prior

2 decision in the absence of error.”). Ultimately, substantial

3 evidence supports the agency’s adverse credibility determination,

4 and, accordingly, we will defer to its finding. See 8 U.S.C.

5 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. Because the

6 adverse credibility determination is dispositive of Barre’s

7 claim, we do not reach the agency’s finding regarding future

8 persecution on account of membership in a particular social

9 group.

10 For the foregoing reasons, the petition for review is

11 DENIED. As we have completed our review, the pending motion for

12 a stay of removal in this petition is DISMISSED as moot. 

13

14 FOR THE COURT: 

15 Catherine O’Hagan Wolfe, Clerk

16

17