18-1321 Ba v. Barr BIA Hom, IJ A206 280 434
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 TO 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 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 14th day of August, two thousand nineteen. 5 6 PRESENT: 7 JON O. NEWMAN, 8 DENNIS JACOBS, 9 PETER W. HALL, 10 Circuit Judges. 11 _____________________________________ 12 13 ABOUBACRY BA, AKA ABOUBAKRY BA, 14 15 Petitioner, 16 17 v. 18-1321 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 22 Respondent. 23 _____________________________________ 24 25 FOR PETITIONER: Gary J. Yerman, New York, NY. 26 27 FOR RESPONDENT: Joseph H. Hunt, Assistant 28 Attorney General; Anthony P. 1 Nicastro, Assistant Director; 2 Joanna L. Watson, Trial Attorney, 3 Office of Immigration Litigation, 4 United States Department of 5 Justice, Washington, DC. 6 7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Aboubacry Ba, a native and citizen of
12 Mauritania, seeks review of an April 10, 2018, decision of
13 the BIA affirming an April 24, 2017, decision of an
14 Immigration Judge (“IJ”) denying asylum, withholding of
15 removal, and relief under the Convention Against Torture
16 (“CAT”). In re Aboubacry Ba, No. A206 280 434 (B.I.A. Apr.
17 10, 2018), aff’g No. A206 280 434 (Immig. Ct. N.Y. City Apr.
18 24, 2017). We assume the parties’ familiarity with the
19 underlying facts and procedural history in this case.
20 Under the circumstances of this case, we have reviewed
21 the IJ’s decision as modified by the BIA and do not reach the
22 IJ’s alternative corroboration finding that the BIA did not
23 review. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
24 520, 522 (2d Cir. 2005).
2 1 Adverse Credibility
2 We review the agency’s adverse credibility determination
3 for substantial evidence. See 8 U.S.C. § 1252(b)(4)(B); Hong
4 Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018).
5 “Considering the totality of the circumstances, and all
6 relevant factors, a trier of fact may base a credibility
7 determination on the . . . consistency between the applicant’s
8 . . . written and oral statements . . . , the internal
9 consistency of each such statement, [and] the consistency of
10 such statements with other evidence of record . . . without
11 regard to whether an inconsistency, inaccuracy, or falsehood
12 goes to the heart of the applicant’s claim, or any other
13 relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer
14 . . . to an IJ’s credibility determination unless, from the
15 totality of the circumstances, it is plain that no reasonable
16 fact-finder could make such an adverse credibility ruling.”
17 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008);
18 accord Hong Fei Gao, 891 F.3d at 76. The adverse credibility
19 determination is supported by substantial evidence.
20 The agency reasonably relied on Ba’s inconsistent
21 statements about his alleged past persecution. See 8 U.S.C.
22 § 1158(b)(1)(B)(iii). The record reflects inconsistencies
3 1 in his testimony, asylum interview, and application about
2 (1) when he was interrogated during his first detention;
3 (2) whether and where he was interrogated during his second
4 detention; and (3) whether he was interrogated during his
5 third detention.1 The agency also properly relied on Ba’s
6 failure to mention in his asylum statement that the police
7 kicked him in the neck, causing lasting injuries, and that
8 his family was under surveillance by the Mauritanian
9 government. See Xiu Xia Lin, 534 F.3d at 166-67 & n.3
10 (allowing reliance on omissions). Ba did not offer
11 compelling explanations for the inconsistencies and
12 omissions. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.
13 2005) (“A petitioner must do more than offer a plausible
14 explanation for his inconsistent statements to secure relief;
15 he must demonstrate that a reasonable fact-finder would be
16 compelled to credit his testimony.” (internal quotation marks
1We do not rely on the agency’s finding that Ba’s testimony that he was deprived of “normal food” was inconsistent with a prior statement that he was starved. See Gurung v. Barr, No. 16-3883, 2019 WL 2909158, at *3 (2d Cir. July 8, 2019) (“[T]rivial differences in the wording of statements describing the same event are not sufficient to create inconsistencies . . . especially [] where an immigrant applicant is relying on an interpreter to convey his story.”). We do not remand, however, because the other inconsistencies and omissions provide substantial evidence for the adverse credibility determination. See id. at *4.
4 1 omitted)).
2 Although the agency may err in relying too heavily on
3 minor omissions at least where the information supplemented,
4 rather than contradicted, earlier statements, the agency did
5 not err here because these omissions were significant. For
6 example, Ba omitted his neck injury from his application, but
7 included less substantial ailments—stomach pain and diarrhea–
8 and emphasized the severity of his neck injury more than once
9 during his hearing. Ba also omitted allegedly ongoing
10 surveillance of his family from his application despite that
11 being his only evidence of future harm. Because of the nature
12 of the omission, the IJ did not err in finding that they
13 undermined Ba’s credibility. See Hong Fei Gao, 891 F.3d at
14 78 (holding that “the probative value of a witness’s prior
15 silence on particular facts depends on whether those facts
16 are ones the witness would reasonably have been expected to
17 disclose”); see also Ming Zhang v. Holder, 585 F.3d 715, 726
18 (2d Cir. 2009) (holding that the agency may “draw an adverse
19 inference about petitioner’s credibility based, inter alia,
20 on h[is] failure to mention” important details or events in
21 prior statements).
22 Given the multiple inconsistencies and omissions, the
5 1 adverse credibility determination is supported by substantial
2 evidence. See Xiu Xia Lin, 534 F.3d at 165-66. That
3 determination is dispositive of asylum, withholding of
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18-1321 Ba v. Barr BIA Hom, IJ A206 280 434
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 TO 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 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 14th day of August, two thousand nineteen. 5 6 PRESENT: 7 JON O. NEWMAN, 8 DENNIS JACOBS, 9 PETER W. HALL, 10 Circuit Judges. 11 _____________________________________ 12 13 ABOUBACRY BA, AKA ABOUBAKRY BA, 14 15 Petitioner, 16 17 v. 18-1321 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 22 Respondent. 23 _____________________________________ 24 25 FOR PETITIONER: Gary J. Yerman, New York, NY. 26 27 FOR RESPONDENT: Joseph H. Hunt, Assistant 28 Attorney General; Anthony P. 1 Nicastro, Assistant Director; 2 Joanna L. Watson, Trial Attorney, 3 Office of Immigration Litigation, 4 United States Department of 5 Justice, Washington, DC. 6 7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Aboubacry Ba, a native and citizen of
12 Mauritania, seeks review of an April 10, 2018, decision of
13 the BIA affirming an April 24, 2017, decision of an
14 Immigration Judge (“IJ”) denying asylum, withholding of
15 removal, and relief under the Convention Against Torture
16 (“CAT”). In re Aboubacry Ba, No. A206 280 434 (B.I.A. Apr.
17 10, 2018), aff’g No. A206 280 434 (Immig. Ct. N.Y. City Apr.
18 24, 2017). We assume the parties’ familiarity with the
19 underlying facts and procedural history in this case.
20 Under the circumstances of this case, we have reviewed
21 the IJ’s decision as modified by the BIA and do not reach the
22 IJ’s alternative corroboration finding that the BIA did not
23 review. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
24 520, 522 (2d Cir. 2005).
2 1 Adverse Credibility
2 We review the agency’s adverse credibility determination
3 for substantial evidence. See 8 U.S.C. § 1252(b)(4)(B); Hong
4 Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018).
5 “Considering the totality of the circumstances, and all
6 relevant factors, a trier of fact may base a credibility
7 determination on the . . . consistency between the applicant’s
8 . . . written and oral statements . . . , the internal
9 consistency of each such statement, [and] the consistency of
10 such statements with other evidence of record . . . without
11 regard to whether an inconsistency, inaccuracy, or falsehood
12 goes to the heart of the applicant’s claim, or any other
13 relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer
14 . . . to an IJ’s credibility determination unless, from the
15 totality of the circumstances, it is plain that no reasonable
16 fact-finder could make such an adverse credibility ruling.”
17 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008);
18 accord Hong Fei Gao, 891 F.3d at 76. The adverse credibility
19 determination is supported by substantial evidence.
20 The agency reasonably relied on Ba’s inconsistent
21 statements about his alleged past persecution. See 8 U.S.C.
22 § 1158(b)(1)(B)(iii). The record reflects inconsistencies
3 1 in his testimony, asylum interview, and application about
2 (1) when he was interrogated during his first detention;
3 (2) whether and where he was interrogated during his second
4 detention; and (3) whether he was interrogated during his
5 third detention.1 The agency also properly relied on Ba’s
6 failure to mention in his asylum statement that the police
7 kicked him in the neck, causing lasting injuries, and that
8 his family was under surveillance by the Mauritanian
9 government. See Xiu Xia Lin, 534 F.3d at 166-67 & n.3
10 (allowing reliance on omissions). Ba did not offer
11 compelling explanations for the inconsistencies and
12 omissions. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.
13 2005) (“A petitioner must do more than offer a plausible
14 explanation for his inconsistent statements to secure relief;
15 he must demonstrate that a reasonable fact-finder would be
16 compelled to credit his testimony.” (internal quotation marks
1We do not rely on the agency’s finding that Ba’s testimony that he was deprived of “normal food” was inconsistent with a prior statement that he was starved. See Gurung v. Barr, No. 16-3883, 2019 WL 2909158, at *3 (2d Cir. July 8, 2019) (“[T]rivial differences in the wording of statements describing the same event are not sufficient to create inconsistencies . . . especially [] where an immigrant applicant is relying on an interpreter to convey his story.”). We do not remand, however, because the other inconsistencies and omissions provide substantial evidence for the adverse credibility determination. See id. at *4.
4 1 omitted)).
2 Although the agency may err in relying too heavily on
3 minor omissions at least where the information supplemented,
4 rather than contradicted, earlier statements, the agency did
5 not err here because these omissions were significant. For
6 example, Ba omitted his neck injury from his application, but
7 included less substantial ailments—stomach pain and diarrhea–
8 and emphasized the severity of his neck injury more than once
9 during his hearing. Ba also omitted allegedly ongoing
10 surveillance of his family from his application despite that
11 being his only evidence of future harm. Because of the nature
12 of the omission, the IJ did not err in finding that they
13 undermined Ba’s credibility. See Hong Fei Gao, 891 F.3d at
14 78 (holding that “the probative value of a witness’s prior
15 silence on particular facts depends on whether those facts
16 are ones the witness would reasonably have been expected to
17 disclose”); see also Ming Zhang v. Holder, 585 F.3d 715, 726
18 (2d Cir. 2009) (holding that the agency may “draw an adverse
19 inference about petitioner’s credibility based, inter alia,
20 on h[is] failure to mention” important details or events in
21 prior statements).
22 Given the multiple inconsistencies and omissions, the
5 1 adverse credibility determination is supported by substantial
2 evidence. See Xiu Xia Lin, 534 F.3d at 165-66. That
3 determination is dispositive of asylum, withholding of
4 removal, and CAT relief because all three claims are based on
5 the same factual predicate. See Paul v. Gonzales, 444 F.3d
6 148, 156-57 (2d Cir. 2006).
7 Filing Deadline
8 Ba argues that the IJ deprived him of due process when
9 he refused to consider BA’s late-filed evidence. Because on
10 appeal to the BIA, Ba generally challenged the IJ’s refusal
11 to accept his evidence, we conclude that he sufficiently
12 exhausted this claim. See Gill v. INS, 420 F.3d 82, 87 (2d
13 Cir. 2005). Regardless of how Ba’s argument is construed,
14 the IJ neither abused his discretion nor deprived Ba of due
15 process when he departed from the immigration court practice
16 manual’s rule by setting his own filing deadline and rejecting
17 Ba’s untimely submission of evidence.
18 We review “an IJ’s decision to establish and enforce
19 filing deadlines for submission of documents” under the abuse
20 of discretion standard. Dedji v. Mukasey, 525 F.3d 187, 191
21 (2d Cir. 2008). “An IJ’s decision constitutes error or an
22 abuse of discretion when (1) his decision rests on an error
6 1 of law (such as application of the wrong legal principle) or
2 a clearly erroneous factual finding or (2) his decision . .
3 . cannot be located within the range of permissible
4 decisions.” Id. at 191-92 (internal quotation marks
5 omitted). “An IJ has broad discretion to set and extend
6 filing deadlines.” Dedji, 525 F.3d at 191; see also 8 C.F.R.
7 § 1003.31(c). “If an application or document is not filed
8 within the time set by the [IJ], the opportunity to file that
9 application or document shall be deemed waived.” 8 C.F.R.
10 § 1003.31(c). The immigration court practice manual’s
11 default rule that filings are due fifteen days in advance of
12 a final hearing only controls “unless otherwise specified by
13 the” IJ. Immigration Court Practice Manual, Chapter 3
14 § 3.1(b), (b)(ii)(A), available at
15 https://www.justice.gov/eoir/page/file/1084851/download.
16 Given this broad authority, the IJ did not abuse his
17 discretion in denying Ba’s late-filed evidence. See Dedji,
18 525 F.3d at 191.
19 Similarly, Ba did not state a due process claim. To
20 succeed on such a claim, he had to show “that []he was denied
21 a full and fair opportunity to present h[is] claims” or “that
22 the IJ or BIA otherwise deprived h[im] of fundamental
7 1 fairness,” Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d
2 144, 155 (2d Cir. 2006), and he had to “allege some cognizable
3 prejudice fairly attributable to the challenged process.”
4 Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008)
5 (internal quotation marks omitted). We review due process
6 claims de novo. See Burger v. Gonzales, 498 F.3d 131, 134
7 (2d Cir. 2007).
8 The IJ’s decision not to accept any of Ba’s late filings
9 did not deny Ba “a full and fair opportunity to present h[is]
10 claims,” Xiao Ji Chen, 434 F.3d at 155, because Ba had nearly
11 three years to submit supporting documents but failed to
12 timely do so. And Ba was not prejudiced by the IJ’s refusal
13 to accept the country conditions evidence because the IJ did
14 not find Ba incredible based on the lack of objective evidence
15 of poor prison conditions. See Garcia-Villeda, 531 F.3d at
16 149.
17 For the foregoing reasons, the petition for review is
18 DENIED. As we have completed our review, any stay of removal
19 that the Court previously granted in this petition is VACATED,
20 and any pending motion for a stay of removal in this petition
21 is DISMISSED as moot. Any pending request for oral argument
22 in this petition is DENIED in accordance with Federal Rule of
8 1 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
2 34.1(b).
3 FOR THE COURT: 4 Catherine O’Hagan Wolfe 5 Clerk of Court 6