12-708 Barry v. Holder BIA Vomacka, IJ A089 266 877 

### 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**  1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 16 th** **day of July, two thousand thirteen.** 4 5 **PRESENT:** 6 **JON O. NEWMAN,** 7 **PIERRE N. LEVAL,** 8 **JOSÉ A. CABRANES,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **MOUSSA BARRY,** 13 Petitioner**,** 14 15 **v. 12-708** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER: Bibiana C. Andrade, New York, NY.** 23 24 **FOR RESPONDENT: Stuart F. Delery, Principal Deputy** 25 **Assistant Attorney General; Paul** 26 **Fiorino, Senior Litigation Counsel;** 27 **Judith R. O’Sullivan, Trial** 28 **Attorney, Office of Immigration** 29 **Litigation, United States Department** 30 **of Justice, Washington, D.C.** 31UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DENIED. 4 Moussa Barry, a native and citizen of Burkina Faso, 5 seeks review of a January 26, 2012, decision of the BIA 6 affirming the July 29, 2010, decision of Immigration Judge 7 (“IJ”) Alan A. Vomacka, which denied his applications for 8 asylum, withholding of removal, and relief under the 9 Convention Against Torture (“CAT”). In re Moussa Barry,No. 10 A089 266 877 (B.I.A. Jan. 26, 2012),aff’gNo. A089 266 877 11 (Immig. Ct. N.Y. City July 29, 2010). We assume the 12 parties’ familiarity with the underlying facts and 13 procedural history in this case. 14 Under the circumstances of this case, we have reviewed 15 the IJ’s decision as modified by the BIA decision. See Xue 16 Hong Yang v. U.S. Dep’t of Justice , 426 F.3d 520, 522 (2d 17 Cir. 2005). The applicable standards of review are well18 established. See8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. 19 Holder, 562 F.3d 510, 513 (2d Cir. 2009). 20 For applications such as Barry’s, governed by the 21 amendments made to the Immigration and Nationality Act by 22 the REAL ID Act of 2005, the agency may, considering the 23
2totality of the circumstances, base a credibility 1 determination on “the consistency of [the applicant’s] 2 statements with other evidence of record [], without regard 3 to whether an inconsistency, inaccuracy, or falsehood goes 4 the heart of the applicant’s claim.” 8 U.S.C. 5 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin v. Mukasey, 534 6 F.3d 162, 167 (2d Cir. 2008) (per curiam). 7 The agency found that Barry was incredible, in part, 8 because his testimony about the number of attackers in an 9 alleged incident differed from his asylum application. 10 Barry does not dispute the inconsistency, but contends that 11 “his responses” were affected by interpretation problems 12 during the hearing, including the IJ’s inappropriate 13 interjection of his personal knowledge of the French 14 language. However, because the government correctly asserts 15 that Barry failed to exhaust these arguments before the 16 agency, we do not consider them. See Lin Zhong v. U.S. 17 Dep’t of Justice , 480 F.3d 104, 118-20 (2d Cir. 2007). 18 Barry also contends that the agency erred by ignoring 19 some of his corroboration and failing to inquire about 20 missing evidence. However, the agency permissibly required 21 additional rehabilitative corroboration, without enumerating 22

3each piece of evidence, because it had reasonably called his 1 testimony into question. See Biao Yang v. Gonzales , 496 2 F.3d 268, 273 (2d Cir. 2007) (per curiam); Xiao Ji Chen v. 3 U.S. Dep’t of Justice , 471 F.3d 315, 341-42 (2d Cir. 2006). 4 Accordingly, we defer to the agency’s adverse 5 credibility determination. Xiu Xia Lin , 534 F.3d at 167. 6 As the only evidence of a threat to Barry’s life or freedom 7 depended on his credibility, the adverse credibility 8 determination in this case is dispositive of his claims for 9 asylum, withholding of removal, and CAT relief.See Paul v. 10 Gonzales , 444 F.3d 148, 156-57 (2d Cir. 2006); Xue Hong Yang 11 v. U.S. Dep’t of Justice , 426 F.3d 520, 523 (2d Cir. 2005). 12 Finally, Barry contends that remand is required because 13 of the ineffective assistance of his attorney before the 14 agency. This argument is also unexhausted. Ling Zhong, 480 15 F.3d at 119. If his prior attorney was ineffective in his 16 representation of Barry before the IJ, a proposition for 17 which we express no opinion, Barry’s remedy is to move the 18 BIA for reopening based on a claim of ineffective assistance 19 of counsel. See , e.g. , Twum v. INS , 411 F.3d 54, 59 (2d 20 Cir. 2005). 21

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4For the foregoing reasons, the petition for review is 1 DENIED. As we have completed our review, any stay of 2 removal that the Court previously granted in this petition 3 is VACATED, and any pending motion for a stay of removal in 4 this petition is DISMISSED as moot. Any pending request for 5 oral argument in this petition is DENIED in accordance with 6 Federal Rule of Appellate Procedure 34(a)(2), and Second 7 Circuit Local Rule 34.1(b). 8
FOR THE COURT: 9 Catherine O’Hagan Wolfe, Clerk 10

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