13-528

Ousmane v. Holder

BIA

 Verrillo, IJ

 A098 857 780

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. 

1 At a stated term of the United States Court of

2 Appeals for the Second Circuit, held at the Thurgood Marshall

3 United States Courthouse, 40 Foley Square, in the City of New

York, on the 6th 4 day of November, two thousand fourteen.

5

6 PRESENT:

7 JOSÉ A. CABRANES,

8 GERARD E. LYNCH,

9 RAYMOND J. LOHIER, JR.,

10 Circuit Judges. 

11 _____________________________________

12

13 FOULERA OUSMANE,

14

15 Petitioner,

16

17 v. 13-528

18 NAC

19

20 ERIC H. HOLDER, JR., UNITED

21 STATES ATTORNEY GENERAL,

22

23 Respondent.

24

25 _____________________________________

26

27 FOR PETITIONER: Foulera Ousmane, pro se, Bronx, New

28 York.
1 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

2 Attorney General; John S. Hogan,

3 Senior Litigation Counsel; Matthew

4 Connelly, Trial Attorney, Office of

5 Immigration Litigation, United

6 States Department of Justice,

7 Washington D.C.

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

11 is DENIED.

12 Foulera Ousmane, a native and citizen of Togo, seeks

13 review of a January 15, 2013, decision of the BIA affirming

14 the November 3, 2010, decision of an Immigration Judge

15 (“IJ”), which denied her application for asylum, withholding

16 of removal, and relief pursuant to the Convention Against

17 Torture (“CAT”). In re Foulera Ousmane, No. A098 857 780

18 (B.I.A. Jan 15, 2013), aff’g No. A098 857 780 (Immig. Ct.

19 Hartford Nov. 3, 2010). We assume the parties’ familiarity

20 with the underlying facts and procedural history in this

21 case. 

22 Under the circumstances of this case, we have reviewed

23 the IJ’s decision as supplemented by the BIA. See Yan Chen

24 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The

25 applicable standards of review are well established. See 8

2
1 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

2 513 (2d Cir. 2009). 

3 We conclude that the inconsistencies cited by the

4 agency provide substantial evidence to support the adverse

5 credibility determination. For asylum applications like

6 Ousmane’s, governed by the REAL ID Act of 2005, the agency

7 may, “[c]onsidering the totality of the circumstances,” base

8 a credibility finding on inconsistencies in an asylum

9 applicant’s statements without regard to whether they go “to

10 the heart of the applicant’s claim.” 8 U.S.C.

11 § 1158(b)(1)(B)(iii). We “defer therefore to [the agency’s]

12 credibility determination unless, from the totality of the

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

14 could make such an adverse credibility ruling.” Xiu Xia Lin

15 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam). 

16 The agency reasonably based its adverse credibility

17 determination on the inconsistencies between Ousmane’s

18 testimony and asylum application. A comparison shows

19 discrepancies regarding the circumstances surrounding her

20 and her husband’s arrest in Togo, the year of that arrest,

21 and the birth dates of her daughters, all of which call into

22 question her sole allegation of past harm–the arrest and

23 detention of herself and her husband.

3
1 Accordingly, the inconsistencies provide substantial

2 evidence for the adverse credibility determination. See 8

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

4 Moreover, the agency was not required to credit her

5 explanation that she was nervous, as she was asked to

6 explain her inconsistencies and her answers were themselves

7 inconsistent. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d

8 Cir. 2005). She did not subsequently clarify her testimony. 

9 Because her claims for asylum, withholding of removal, and

10 CAT relief rely on the same factual predicate, the adverse

11 credibility determination is dispositive. See Paul v.

12 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v.

13 U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005). 

14

15 For the foregoing reasons, the petition for review is

16 DENIED. 

17 FOR THE COURT: 

18 Catherine O’Hagan Wolfe, Clerk

19

20

4