Souare v. Holder
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 4 New York, on the 18th day of October, two thousand ten.
6 PRESENT: 7 ROGER J. MINER, 8 JOSE A. CABRANES, 9 DENNY CHIN, 10 Circuit Judges.
6 UPON DUE CONSIDERATION of this petition for review of a 7 Board of Immigration Appeals ("BIA") decision, it is hereby 8 ORDERED, ADJUDGED, AND DECREED that the petition for review 9 is DENIED.
10 Petitioner Daye Souare ("Souare"), a native and citizen 11 of Guinea, seeks review of a December 10, 2009 order of the 12 BIA, affirming the August 11, 2008 decision of Immigration 13 Judge ("IJ") Steven R. Abrams, which denied Souare's 14 applications for asylum, withholding of removal, and relief 15 under the Convention Against Torture ("CAT"). In re Daye 16 Souare, No. A 093 434 776 (B.I.A. Dec. 10, 2009), aff'g No. 17 A 093 434 776 (Immigr. Ct. N.Y. City Aug. 11, 2008). We 18 assume the parties' familiarity with the underlying facts 19 and procedural history in this case.
20 Under the circumstances of this case, we review both 21 the IJ's and the BIA's opinions "for the sake of 22 completeness." Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 23 2008). The applicable standards of review are well- 24 established. See Shu Wen Sun v. Bd. of Immigration Appeals, 25 510 F.3d 377, 379 (2d Cir. 2007); Bah v. Mukasey, 529 F.3d 1 99, 110 (2d Cir. 2008). For applications governed by the 2 REAL ID Act of 2005, Pub. L. 109-13, 199 Stat. 302 (May 11, 3 2005), the agency may, considering the totality of the 4 circumstances, base a credibility finding on an asylum 5 applicant's demeanor, the plausibility of his account, and 6 inconsistencies in his statements, without regard to whether 7 they go "to the heart of the applicant's claim." 8 U.S.C. 8 § 1158(b)(1)(B)(iii); see also In re J-Y-C-, 24 I. & N. Dec. 9 260, 265 (B.I.A. 2007).
10 Analyzed under the REAL ID Act, the agency's adverse 11 credibility determination is supported by substantial 12 evidence. In finding Souare's testimony not credible, the 13 IJ relied in part on Souare's demeanor, noting that his 14 testimony was "evasive and ambiguous." Because the IJ was 15 in the best position to observe Souare's manner while 16 testifying, we afford his demeanor finding particular 17 deference. See Zhou Yun Zhang v. Immigration & 18 Naturalization Serv., 386 F.3d 66, 73-74 (2d Cir. 2004).
19 Indeed, the record supports the IJ's finding that Souare's 20 testimony was evasive or unresponsive with respect to the 21 age of his father, the reasons for his request for advance 22 parole, and his political activities.
1 In finding Souare not credible, the agency also 2 reasonably relied on a number of inconsistencies in his 3 testimony. See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 4 (2d Cir. 2008). For example, the agency noted that 5 documentation Souare submitted conflicted with his testimony 6 and asylum application. The record supports this finding, 7 as it shows that a letter dated August 20, 2007, indicated 8 that Souare and his parents fled Guinea because they were 9 sought by the Guinean authorities for their political 10 activities, thereby contradicting Souare's account that his 11 father was killed in January 2007. Moreover, the agency was 12 entitled to disregard Souare's dual attempts to explain the 13 discrepancy -- as either a translation error or a result of 14 the writer's reluctance to mention his father's problems -- 15 because the explanations would not necessarily be compelling 16 to a reasonable factfinder. See Majidi v. Gonzales, 430 17 F.3d 77, 80-81 (2d Cir. 2005).
18 The agency also noted that Souare testified 19 inconsistently when asked about the basis of his request for 20 advance parole. Initially, Souare testified that, in order 21 to obtain advance parole in 2005, he had told the 22 immigration officials that his wife and children were sick, 1 and specified that he "didn't mention [his] father to get 2 this travel document." After Souare was shown a document he 3 had submitted in applying for advance parole, however, he 4 recanted, stating that the basis for his request for advance 5 parole was, in fact, his father's illness.
6 Souare does not attempt to reconcile his testimony, but 7 instead argues that the agency erred in relying on these 8 "minor inconsistencies." However, even minor 9 inconsistencies may form the basis of an adverse credibility 10 determination under the REAL ID Act. See 8 U.S.C. 11 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 167. 12 In light of the agency's findings regarding Souare's 13 demeanor and the inconsistencies in his testimony and 14 documentation, the adverse credibility determination is 15 supported by substantial evidence. See Shu Wen Sun, 510 16 F.3d at 380-81; Xiu Xia Lin, 534 F.3d at 167. Thus, the 17 agency's denial of his application for asylum, withholding 18 of removal, and CAT relief was not in error as all three 19 claims shared the same factual predicate. See Paul v. 20 Gonzales, 444 F.3d 148, 156 (2d Cir. 2005) (withholding of 21 removal); Xue Hong Yang v. U.S. Dep't of Justice, 426 F.3d 22 520, 523 (2d Cir. 2006) (CAT).
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