11-3044-ag

Diallo v. Holder

BIA

Elstein, IJ

A094 778 648

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 Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 24th 4 day of May, two thousand twelve.

5

6 PRESENT:

7 DENNIS JACOBS,

8 Chief Judge,

9 BARRINGTON D. PARKER, 

10 RICHARD C. WESLEY,

11 Circuit Judges. 

12 _____________________________________

13

14 MAMADOU LAMINE DIALLO,

15 Petitioner, 16

17 v. 11-3044-ag

18 NAC 

19 ERIC H. HOLDER, JR., UNITED STATES 

20 ATTORNEY GENERAL,

21 Respondent. 22 _____________________________________ 23

24

25 FOR PETITIONER: Gary J. Yerman, New York, New York.

26

27 FOR RESPONDENT: Tony West, Assistant Attorney General;

28 Douglas E. Ginsburg, Assistant Director;

29 Aaron R. Petty, Trial Attorney, Office of

30 Immigration Litigation, Civil Division,

31 United States Department of Justice,

32 Washington, D.C.
2

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 Petitioner Mamadou Lamine Diallo, a native and citizen

6 of the People’s Republic of Guinea, seeks review of a July

7 6, 2011, order of the BIA affirming the May 18, 2009,

8 decision of Immigration Judge (“IJ”) Annette S. Elstein

9 denying his application for asylum, withholding of removal,

10 and relief under the Convention Against Torture (“CAT”). In

11 re Mamadou Lamine Diallo, No. A094 778 648 (B.I.A. July 6,

12 2011), aff’g No. A094 778 648 (Immig. Ct. N.Y. City May 18,

13 2009). We assume the parties’ familiarity with the

14 underlying facts and procedural history.

15 We have reviewed the IJ’s decision as supplemented by

16 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d

17 Cir. 2005). The applicable standards of review are

18 well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng

19 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). For asylum

20 applications governed by the REAL ID Act, such as Diallo’s,

21 the agency may, considering the totality of the

22 circumstances, base a credibility finding on an applicant’s

23 demeanor, the plausibility of his account, or
3

1 inconsistencies in his statements, without regard to whether

2 they go “to the heart of the applicant’s claim.” 8 U.S.C.

3 § 1158(b)(1)(B)(iii).

4 The agency finding that Diallo was not credible rested

5 in part on the fact that a letter he submitted from his

6 friend Mr. Bobo did not include details of his role in

7 helping Diallo to escape from prison. Generally, the agency

8 may rely on omissions as the basis for an adverse

9 credibility determination. See Xiu Xia Lin v. Mukasey, 534

10 F.3d 162, 166 n.3 (2d Cir. 2008). Diallo challenges the

11 agency’s assumption that the letter should have mentioned

12 Mr. Bobo’s past assistance; as Diallo observes, the letter

13 was personal correspondence, written to inform Diallo of

14 recent events in Guinea. But regardless of whether it was

15 reasonable to expect that the letter would describe past

16 events, remand would not be necessary because “we can state

17 with confidence that the IJ would adhere to his decision

18 were the petition remanded,” because there are “ample,

19 error-free grounds that provide substantial evidence to

20 support the IJ’s adverse credibility determination.” Singh

21 v. BIA, 438 F.3d 145, 149-50 (2d Cir. 2006) (quotations

22 omitted).

23
4

1 The record, which contains specific instances of

2 inconsistent testimony, supports the IJ’s finding that

3 Diallo’s vague and unresponsive demeanor undermined his

4 credibility. See Li Hua Lin v. U.S. Dep’t of Justice, 453

5 F.3d 99, 109 (2d Cir. 2006); Majidi v. Gonzales, 430 F.3d

6 77, 81 n.1 (2d Cir. 2005). Diallo gave conflicting

7 testimony about whether he was arrested in January or July

8 2005, whether he was stripped naked in prison, and exactly

9 how he was injured. 

10 Contrary to Diallo, the IJ was not compelled to accept

11 Diallo’s explanation that he never said “January” as the

12 date of his arrest and that any mistake was a result of the

13 confused immigration proceedings. See Majidi, 430 F.3d at

14 80 (“A petitioner must do more than offer a plausible

15 explanation for his inconsistent statements to secure

16 relief; he must demonstrate that a reasonable fact-finder

17 would be compelled to credit his testimony.” (emphasis in

18 original; quotations omitted)). Similarly, we defer to the

19 IJ’s conclusion that Diallo’s testimony was inconsistent

20 concerning how he was injured and how he was stripped of his

21 clothes. See Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.

22 2007).
5

1 Together, Diallo’s demeanor and the inconsistencies in

2 his testimony constitute substantial evidence in support of

3 the agency’s adverse credibility determination. See 8

4 U.S.C. § 1158(b)(1)(B)(iii). Accordingly, the agency did

5 not err in denying Diallo’s applications for asylum,

6 withholding of removal, or CAT relief based on that

7 credibility finding. See Paul v. Gonzales, 444 F.3d 148,

8 157 (2d Cir. 2006). Because the agency’s credibility

9 finding supports the denial of relief, we need not address

10 the agency’s alternative finding that Diallo failed to meet

11 his burden of proof.

12 For the foregoing reasons, the petition for review is

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

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

15 Any pending request for oral argument in this petition is

16 DENIED in accordance with Federal Rule of Appellate

17 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

18 FOR THE COURT: 

19 Catherine O’Hagan Wolfe, Clerk

20

21