16-4190 Ba v. Sessions BIA
Cheng, IJ
A201 122 222
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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 23rd day of April, two thousand eighteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 PETER W. HALL, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 OUMAR SAMBA BA, 14 Petitioner, 15 16 v. 16-4190 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Diana L. Castaneda, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; John S. Hogan, 27 Assistant Director; Robbin K. 28 Blaya, Trial Attorney, Office of 29 Immigration Litigation, United 30 States Department of Justice, 31 Washington, DC.
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 Oumar Samba Ba, a native and citizen of 6 Mauritania, seeks review of a November 18, 2016, decision 7 of the BIA affirming a September 24, 2015, decision of an 8 Immigration Judge (“IJ”) denying Ba’s application for 9 asylum, withholding of removal, and relief under the 10 Convention Against Torture (“CAT”). In re Oumar Samba Ba, 11 No. A 201 122 222 (B.I.A. Nov. 18, 2016), aff’g No. A 201 12 122 222 (Immig. Ct. N.Y. City Sept. 24, 2015). We assume 13 the parties’ familiarity with the underlying facts and 14 procedural history in this case. 15 Under the circumstances of this case, we have reviewed 16 both the BIA’s and IJ’s decisions. See Yun-Zui Guan v. 17 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The standards 18 of review are well established. See 8 U.S.C. § 1252(b)(4); 19 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165 (2d Cir. 2008). 20 The agency may, “[c]onsidering the totality of the 21 circumstances,” base a credibility finding on “the 22 consistency between the applicant’s or witness’s written 23 and oral statements . . ., the internal consistency of each
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1 such statement, the consistency of such statements with 2 other evidence of record . . ., and any inaccuracies or 3 falsehoods in such statements, without regard to whether an 4 inconsistency, inaccuracy, or falsehood goes to the heart 5 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); 6 Xiu Xia Lin, 534 F.3d at 163-64. “We defer . . . to an 7 IJ’s credibility determination unless . . . it is plain 8 that no reasonable fact-finder could make such an adverse 9 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. 10 Substantial evidence supports the agency’s determination 11 that Ba was not credible. 12 As set forth below, the adverse credibility 13 determination is supported by significant inconsistencies 14 between Ba’s testimony on the one hand and his written 15 statement and documentary evidence on the other. See 8 16 U.S.C. § 1158(b)(1)(B)(iii). Ba testified, for example, 17 that the Mauritanian government confiscated his farmland 18 without compensation and assigned it to non-black 19 Mauritanians. But he omitted the confiscation of his own 20 personal land from his written statement, and the letters 21 from his brother, wife, and friend similarly contain no 22 reference to seizure of Ba’s (or their) own land. The IJ 23 reasonably concluded that the omissions from Ba’s written
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1 statement and his brother’s letter were significant because 2 Ba allegedly suffered a valuable loss to his livelihood as 3 the victim of the same racist and discriminatory practices 4 he publicly protested, and Ba’s brother co-owned the land. 5 See Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 6 295 (2d Cir. 2006) (holding that material inconsistency 7 relating to central aspect of asylum claim provided 8 substantial evidence for adverse credibility 9 determination); see also Xiu Xia Lin, 534 F.3d at 166 n.3 10 (“An inconsistency and an omission are . . . functionally 11 equivalent” for credibility purposes.); Ming Zhang v. 12 Holder, 585 F.3d 715, 726 (2d Cir. 2009) (“Omissions that 13 go to a heart of an applicant’s claim can form the basis 14 for an adverse credibility determination.” (citation and 15 quotation marks omitted)). The agency was not compelled to 16 accept the explanation that the Mauritanian government 17 confiscated all the land occupied by the black population 18 in Ba’s village and reasonably expected that Ba’s 19 application would have mentioned the seizure of his own 20 land. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 21 2005) (“A petitioner must do more than offer a plausible 22 explanation for his inconsistent statements to secure 23 relief; he must demonstrate that a reasonable fact-finder
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1 would be compelled to credit his testimony.” (internal 2 quotation marks and citation omitted)). 3 Additional inconsistencies regarding whether Ba sought 4 medical treatment following each of the alleged attacks 5 bolster the adverse credibility determination. 8 U.S.C. 6 § 1158(b)(1)(B)(iii); see Xiu Xia Lin, 534 F.3d at 167. 7 For example, Ba testified that he sought treatment in a 8 clinic after each of the three attacks, but neither his 9 written statement nor his family’s letters included any 10 reference to any medical treatment. Ming Zhang, 585 F.3d 11 at 726. The agency reasonably found the omission 12 significant as it relates to the level of harm Ba allegedly 13 suffered. See Xian Tuan Ye, 446 F.3d at 295. Although Ba 14 suggests that the IJ required him to answer complex 15 questions about his medical treatment despite his lack of 16 education, the IJ cited the lack of any reference to 17 medical treatment in Ba’s documentary evidence rather than 18 Ba’s lack of detailed medical knowledge. 19 Finally, the agency reasonably relied on Ba’s 20 inconsistent testimony regarding the submission of false 21 documentation to the consulate in support of his visa 22 application. Although the agency generally may not rely on 23 false statements made to escape persecution to find an
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1 applicant not credible, the agency did not do so here. 2 Instead, the IJ relied mainly on the fact that Ba was 3 inconsistent at his hearing as to what false information he 4 had presented to obtain a visa to travel to the United 5 States and reasonably noted that Ba had been unharmed in 6 Mauritania for a couple of years before seeking a visa. 7 Cf. Rui Ying Lin v. Gonzales, 445 F.3d 127, 133 (2d Cir. 8 2006) (instructing that fraudulent document cannot form 9 basis of adverse credibility determination if such document 10 was used to escape “immediate danger or imminent 11 persecution”); Edimo-Doualla v. Gonzales, 464 F.3d 276, 288 12 (2d Cir. 2006) (same). We defer to the agency “[w]here 13 there are two permissible views of the evidence.” Siewe v. 14 Gonzales, 480 F.3d 160, 167 (2d Cir. 2007). 15 Substantial evidence supports the agency’s adverse 16 credibility determination given the centrality of Ba’s 17 omission regarding the confiscation of his own land, as 18 well as the more minor omissions and inconsistencies 19 relating to medical treatment and what false information he 20 presented to the U.S. consulate. See 8 U.S.C. 21 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. The 22 adverse credibility determination is dispositive of asylum, 23 withholding of removal, and CAT relief because all three
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1 claims rely on Ba’s credibility. See Paul v. Gonzales, 444 2 F.3d 148, 156-57 (2d Cir. 2006). 3 For the foregoing reasons, the petition for review is 4 DENIED. As we have completed our review, any stay of removal 5 that the Court previously granted in this petition is VACATED, 6 and any pending motion for a stay of removal in this petition 7 is DISMISSED as moot. Any pending request for oral argument 8 in this petition is DENIED in accordance with Federal Rule of 9 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 10 34.1(b).
11 FOR THE COURT: 12 Catherine O’Hagan Wolfe, Clerk of Court