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.

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

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

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

on the 16th 4 day of July, two thousand thirteen.

5

6 PRESENT:

7 JON O. NEWMAN,

8 PIERRE N. LEVAL,

9 JOSÉ A. CABRANES,

10 Circuit Judges. 

11 _____________________________________

12

13 MOUSSA BARRY,

14 Petitioner, 

15

16 v. 12-708

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Bibiana C. Andrade, New York, NY.

24

25 FOR RESPONDENT: Stuart F. Delery, Principal Deputy

26 Assistant Attorney General; Paul

27 Fiorino, Senior Litigation Counsel;

28 Judith R. O’Sullivan, Trial

29 Attorney, Office of Immigration

30 Litigation, United States Department

31 of Justice, Washington, D.C.
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 Moussa Barry, a native and citizen of Burkina Faso,

6 seeks review of a January 26, 2012, decision of the BIA

7 affirming the July 29, 2010, decision of Immigration Judge

8 (“IJ”) Alan A. Vomacka, which denied his applications for

9 asylum, withholding of removal, and relief under the

10 Convention Against Torture (“CAT”). In re Moussa Barry, No.

11 A089 266 877 (B.I.A. Jan. 26, 2012), aff’g No. A089 266 877

12 (Immig. Ct. N.Y. City July 29, 2010). We assume the

13 parties’ familiarity with the underlying facts and

14 procedural history in this case.

15 Under the circumstances of this case, we have reviewed

16 the IJ’s decision as modified by the BIA decision. See Xue

17 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d

18 Cir. 2005). The applicable standards of review are well19 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

20 Holder, 562 F.3d 510, 513 (2d Cir. 2009). 

21 For applications such as Barry’s, governed by the

22 amendments made to the Immigration and Nationality Act by

23 the REAL ID Act of 2005, the agency may, considering the

2
1 totality of the circumstances, base a credibility

2 determination on “the consistency of [the applicant’s]

3 statements with other evidence of record [], without regard

4 to whether an inconsistency, inaccuracy, or falsehood goes

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

6 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin v. Mukasey, 534

7 F.3d 162, 167 (2d Cir. 2008) (per curiam). 

8 The agency found that Barry was incredible, in part,

9 because his testimony about the number of attackers in an

10 alleged incident differed from his asylum application. 

11 Barry does not dispute the inconsistency, but contends that

12 “his responses” were affected by interpretation problems

13 during the hearing, including the IJ’s inappropriate

14 interjection of his personal knowledge of the French

15 language. However, because the government correctly asserts

16 that Barry failed to exhaust these arguments before the

17 agency, we do not consider them. See Lin Zhong v. U.S.

18 Dep’t of Justice, 480 F.3d 104, 118-20 (2d Cir. 2007).

19 Barry also contends that the agency erred by ignoring

20 some of his corroboration and failing to inquire about

21 missing evidence. However, the agency permissibly required

22 additional rehabilitative corroboration, without enumerating

3
1 each piece of evidence, because it had reasonably called his

2 testimony into question. See Biao Yang v. Gonzales, 496

3 F.3d 268, 273 (2d Cir. 2007) (per curiam); Xiao Ji Chen v.

4 U.S. Dep’t of Justice, 471 F.3d 315, 341-42 (2d Cir. 2006).

5 Accordingly, we defer to the agency’s adverse

6 credibility determination. Xiu Xia Lin, 534 F.3d at 167. 

7 As the only evidence of a threat to Barry’s life or freedom

8 depended on his credibility, the adverse credibility

9 determination in this case is dispositive of his claims for

10 asylum, withholding of removal, and CAT relief. See Paul v.

11 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006); Xue Hong Yang

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

13 Finally, Barry contends that remand is required because

14 of the ineffective assistance of his attorney before the

15 agency. This argument is also unexhausted. Ling Zhong, 480

16 F.3d at 119. If his prior attorney was ineffective in his

17 representation of Barry before the IJ, a proposition for

18 which we express no opinion, Barry’s remedy is to move the

19 BIA for reopening based on a claim of ineffective assistance

20 of counsel. See, e.g., Twum v. INS, 411 F.3d 54, 59 (2d

21 Cir. 2005).

22

4
1 For the foregoing reasons, the petition for review is

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

3 removal that the Court previously granted in this petition

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

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

6 oral argument in this petition is DENIED in accordance with

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

8 Circuit Local Rule 34.1(b).

9 FOR THE COURT: 

10 Catherine O’Hagan Wolfe, Clerk

5