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.**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 24 th** **day of May, two thousand twelve.** 4 5 **PRESENT:** 6 **DENNIS JACOBS,** 7 Chief Judge, 8 **BARRINGTON D. PARKER,** 9 **RICHARD C. WESLEY,** 10 Circuit Judges**.** 11

**_____________________________________** 12 13 **MAMADOU LAMINE DIALLO,** 14 Petitioner**,** 15 16 **v. 11-3044-ag** 17 **NAC** 18 **ERIC H. HOLDER, JR., UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent**.** 21

**_____________________________________** 22 23 24 **FOR PETITIONER: Gary J. Yerman, New York, New York.** 25 26 **FOR RESPONDENT: Tony West, Assistant Attorney General;** 27 **Douglas E. Ginsburg, Assistant Director;** 28 **Aaron R. Petty, Trial Attorney, Office of** 29 **Immigration Litigation, Civil Division,** 30 **United States Department of Justice,** 31 **Washington, D.C.** 322 UPON 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 Petitioner Mamadou Lamine Diallo, a native and citizen 5 of the People’s Republic of Guinea, seeks review of a July 6 6, 2011, order of the BIA affirming the May 18, 2009, 7 decision of Immigration Judge (“IJ”) Annette S. Elstein 8 denying his application for asylum, withholding of removal, 9 and relief under the Convention Against Torture (“CAT”). In 10 re Mamadou Lamine Diallo , No. A094 778 648 (B.I.A. July 6, 11 2011), aff’gNo. A094 778 648 (Immig. Ct. N.Y. City May 18, 12 2009). We assume the parties’ familiarity with the 13 underlying facts and procedural history. 14 We have reviewed the IJ’s decision as supplemented by 15 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d 16 Cir. 2005). The applicable standards of review are 17 well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng 18 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). For asylum 19 applications governed by the REAL ID Act, such as Diallo’s, 20 the agency may, considering the totality of the 21 circumstances, base a credibility finding on an applicant’s 22 demeanor, the plausibility of his account, or 233 inconsistencies in his statements, without regard to whether 1 they go “to the heart of the applicant’s claim.” 8 U.S.C. 2 § 1158(b)(1)(B)(iii). 3 The agency finding that Diallo was not credible rested 4 in part on the fact that a letter he submitted from his 5 friend Mr. Bobo did not include details of his role in 6 helping Diallo to escape from prison. Generally, the agency 7 may rely on omissions as the basis for an adverse 8 credibility determination. See Xiu Xia Lin v. Mukasey, 534 9 F.3d 162, 166 n.3 (2d Cir. 2008). Diallo challenges the 10 agency’s assumption that the letter should have mentioned 11 Mr. Bobo’s past assistance; as Diallo observes, the letter 12 was personal correspondence, written to inform Diallo of 13 recent events in Guinea. But regardless of whether it was 14 reasonable to expect that the letter would describe past 15 events, remand would not be necessary because “we can state 16 with confidence that the IJ would adhere to his decision 17 were the petition remanded,” because there are “ample, 18 error-free grounds that provide substantial evidence to 19 support the IJ’s adverse credibility determination.” Singh 20

v. BIA, 438 F.3d 145, 149-50 (2d Cir. 2006) (quotations 21 omitted). 22

234 The record, which contains specific instances of 1 inconsistent testimony, supports the IJ’s finding that 2 Diallo’s vague and unresponsive demeanor undermined his 3 credibility. See Li Hua Lin v. U.S. Dep’t of Justice , 453 4 F.3d 99, 109 (2d Cir. 2006) ; Majidi v. Gonzales, 430 F.3d 5 77, 81 n.1 (2d Cir. 2005). Diallo gave conflicting 6 testimony about whether he was arrested in January or July 7 2005, whether he was stripped naked in prison, and exactly 8 how he was injured. 9 Contrary to Diallo, the IJ was not compelled to accept 10 Diallo’s explanation that he never said “January” as the 11 date of his arrest and that any mistake was a result of the 12 confused immigration proceedings. See Majidi , 430 F.3d at 13 80 (“A petitioner must do more than offer a plausible 14 explanation for his inconsistent statements to secure 15 relief; he must demonstrate that a reasonable fact-finder 16 would be compelled to credit his testimony.” (emphasis in 17 original; quotations omitted)). Similarly, we defer to the 18 IJ’s conclusion that Diallo’s testimony was inconsistent 19 concerning how he was injured and how he was stripped of his 20 clothes.See Siewe v. Gonzales , 480 F.3d 160, 170 (2d Cir. 21 2007). 225 Together, Diallo’s demeanor and the inconsistencies in 1 his testimony constitute substantial evidence in support of 2 the agency’s adverse credibility determination. See 8 3 U.S.C. § 1158(b)(1)(B)(iii). Accordingly, the agency did 4 not err in denying Diallo’s applications for asylum, 5 withholding of removal, or CAT relief based on that 6 credibility finding. See Paul v. Gonzales, 444 F.3d 148, 7 157 (2d Cir. 2006). Because the agency’s credibility 8 finding supports the denial of relief, we need not address 9 the agency’s alternative finding that Diallo failed to meet 10 his burden of proof. 11 For the foregoing reasons, the petition for review is 12 DENIED. As we have completed our review, the pending motion 13 for a stay of removal in this petition is DISMISSED as moot. 14 Any pending request for oral argument in this petition is 15 DENIED in accordance with Federal Rule of Appellate 16 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). 17
FOR THE COURT: 18 Catherine O’Hagan Wolfe, Clerk 19 20 21