Barry v. Mukasey

282 F. App'x 902
CourtCourt of Appeals for the Second Circuit
DecidedJune 30, 2008
DocketNo. 07-2411-ag
StatusPublished

This text of 282 F. App'x 902 (Barry v. Mukasey) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barry v. Mukasey, 282 F. App'x 902 (2d Cir. 2008).

Opinion

SUMMARY ORDER

Petitioner Th Boubacar Sidy Barry, a native and citizen of Guinea, seeks review of a May 9, 2007 order of the BIA affirming the September 21, 2005 decision of [904]*904Immigration Judge (“IJ”) Paul A. DeFonzo, denying Barry’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Th Boubaear Sidy Barry, No. A98 415 655 (B.I.A. May 9, 2007), aff'g No. A98 415 655 (Immig. Ct. N.Y. City Sept. 21, 2005). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

At the outset we note that Barry has not presented in his brief to this Court any argument to challenge the agency’s denial of his CAT claim. Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1 (2d Cir.2005). Accordingly, we deem Barry’s CAT claim abandoned and for that reason deny it.

When, as here, “the BIA agrees with the IJ’s conclusion that a petitioner is not credible and, without rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision, we review both the BIA’s and IJ’s opinions — or more precisely, we review the IJ’s decision including the portions not explicitly discussed by the BIA.” Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005) (per curiam). We review the agency’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see, e.g., Zhou Yun Zhang v. INS, 386 F.3d 66, 73 & n. 7 (2d Cir.2004), overruled in part on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d Cir.2007) (en banc). We will vacate and remand for new findings, however, if the agency’s reasoning or its fact-finding process was sufficiently flawed. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 400 (2d Cir.2005).

The IJ determined that Barry was not credible for two reasons. The first was three discrepancies in Barry’s testimony: (1) Barry testified that he was a member of the “UFR” and the written materials he submitted demonstrate that “UFR” stands for “Union of Republican Forces;” yet in his testimony he called the organization the “Union [of] Democratic Forces;” (2) Barry testified that he joined the UFR in 2000 after Sidya Toure became affiliated with the party, but his asylum application stated that he joined the UFR in 1998; and (3) Barry’s testimony was inconsistent with the “Assessment to Refer,” which also reported that Barry joined the UFR in 1998.

Barry’s response when asked about the first discrepancy was that the translation confused him.1 He stated, “The way we are talking right now is why I made a mistake saying what I did.” The IJ characterized this explanation as “meaningless.” 2 When asked about the latter two inconsistencies, Bariy explained that he told both the lawyer and the asylum officer preparing the documents that he began attending the University of Conakry in 1998 and that he joined the UFR in 2000. Barry testified that he “told the ... interviewer that when I was at the university I joined the party. Then the interviewer asked me what year I was at the university, I said it was in 1998.” Barry said he [905]*905alerted the asylum officer to the mistake but that it never got corrected. The IJ again found Barry’s response inadequate and concluded, “the respondent has simply been enmeshed with an inconsistency of his own making and there is a failure of credibility in this case.” The IJ was under no obligation to accept Barry’s explanations, and “our limited role as an appellate court does not permit us to engage in an independent evaluation of the cold record or ask ourselves whether, if we were sitting as fact-finders in the first instance, we would credit or discredit an applicant’s testimony.” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 334-35 (2d Cir.2006).

The second reason the IJ found Barry not credible was the absence of corroborating evidence. The IJ stated, “The respondent has submitted nothing which would convince the Court that the Guinean Government has any interest whatsoever in the respondent for any reason.” Ostensibly addressing this concern, however, Barry had in fact entered into evidence two documents: (1) a UFR identification card bearing his name and his Guinean address information, and (2) a letter dated October 1, 2004, addressed to the INS, certifying Barry’s membership in the UFR. The letter is signed “Mamady Cisse; President, U.F.R., Section of New York.”3 This evidence notwithstanding, the IJ concluded:

The Court is cognizant that an asylum applicant is under no obligation to present such corroborating evidence, however, where, as here, severe questions exist as to the bona fides of the claim based on multiple and material inconsistencies presented in support of the claim, the Court considers it extremely prejudicial to the respondent. He has not presented such corroborating evidence.
The Court further considers that the various identification cards presented by the respondent from the UFR as well as the letter from the UFR have, in all likelihood, been fabricated. The Court comes to this conclusion based not only upon the earlier referenced inconsistencies, but also noting that the UFR card allegedly issued to the respondent in Guinea is undated.

Although on this record we will not second guess the IJ’s conclusion regarding the errors and inconsistencies in Barry’s testimony, see Zhou Yun Zhang, 386 F.3d at 74 (“[T]he court may not itself hypothesize excuses for the inconsistencies ... ”), we do disagree with his conclusion that there was no corroborating evidence. For the reasons that follow, we determine that the IJ erred in his consideration of the documentary evidence. Further, because we cannot “confidently predict” that the agency would reach the same decision absent the errors that were made, Xiao Ji Chen, 471 F.3d at 339, we must vacate the BIA’s decision and remand the case for further consideration.

An IJ’s conclusion that an applicant’s documents are fraudulent “must be based on more than speculation and conjecture.” Rui Ying Lin v. Gonzales, 445 F.3d 127, 134 (2d Cir.2006). It is unclear on this record how the lack of a date on the UFR membership card has any bearing whatsoever on the authenticity of the card. The IJ’s analysis in that regard is pure speculation.

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