Diallo v. Gonzales

238 F. App'x 723
CourtCourt of Appeals for the Second Circuit
DecidedAugust 29, 2007
DocketNo. 07-0781-ag
StatusPublished

This text of 238 F. App'x 723 (Diallo v. Gonzales) 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
Diallo v. Gonzales, 238 F. App'x 723 (2d Cir. 2007).

Opinion

SUMMARY ORDER

Petitioner Mamadou Saliou Diallo, a native and citizen of Guinea of Fulani ethnicity, seeks review of a January 31, 2007 order of the BIA affirming the June 13, 2005 decision of Immigration Judge (“IJ”) Adam Opaciuch denying Diallo’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Mamadou Saliou Diallo, No. A 95 476 599 (B.I.A. January 31, 2007), aff'g No. A 95 476 599 (Immig. Ct. N.Y. City, June 13, 2005). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

Where, as here, the BIA issues an opinion that fully adopts the IJ’s decision, this Court reviews the IJ’s decision as supplemented by the BIA. See Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility determinations, 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., Belortaja v. Gonzales, 484 F.3d 619, 623 (2d Cir.2007). However, we will vacate and remand for new findings 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).

Here, substantial evidence supports the IJ’s adverse credibility finding. First, the IJ accurately noted that Diallo’s testimony was “internally inconsistent” as to his duties with the Rally of the People of Guinea (“RPG”), an opposition party. After Diallo offered spare testimony on direct as to these duties, the IJ and counsel for the Department of Homeland Security, consistent with our case law, probed for details. See Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 152 (2d Cir.2003)(suggesting that where an applicant gives spare testimony, raising the question whether it is fabricated, the IJ and counsel “may wish to probe for incidental details, seeking to draw out inconsistencies that would support a finding of lack of credibility”) (internal quota[725]*725tion omitted). Diallo specifically testified on cross-examination that he “helped people to vote because [he] was among those who surveyed or who watched the elections process.” [JA 149]. When pressed to name the presidential election in which he participated, however, Diallo changed course, stating that he “didn’t participate in any election,” because he was supposed to help during the November 2001 election, but “[b]y that time [he] had a problem.” [JA 149]. Because this discrepancy was material to Diallo’s claim that he was persecuted in Guinea due to his RPG activities, the IJ properly relied on it in rendering his adverse credibility determination. See Liang Chen v. U.S. Att’y Gen., 454 F.3d 103, 106-07 (2d Cir.2006).

The IJ similarly acted reasonably in concluding that Diallo had further undermined his credibility with his testimony about obtaining identity documents, including a passport, “from the very government that he fears during a time that he was allegedly in hiding.” Diallo testified that he was detained by the military for ten days, during which time he was beaten and deprived of food. According to his testimony, he was released only after his father bribed one or more guards, who warned Diallo upon release that he should leave the country because if he was again caught, he would be killed. [JA 143-46]. Given this testimony, the IJ asked Diallo why, during the next six months when he allegedly remained in hiding at his uncle’s residence, Diallo risked obtaining a passport and other travel documents, including a student visa to the United States. Diallo first explained, not implausibly, that Guinea is not a “country like here in America” where computer records might have revealed the fact of his earlier detention to the officials responsible for issuing identity documents. [JA 153-54]. The IJ’s further probing then resulted in the following exchange:

Q. Well, why did you take the chance, though? ... I don’t know why your uncle just didn’t get a passport in someone else’s name or you didn’t adopt an alias to get out of the country.
A. I can’t take anybody else’s passport because if I got out I can’t come back again.
Q. Well, why — you don’t — why do you want to come back in again? You just said you don’t want to return.
A. I mean, if I use somebody else’s passport I can’t go no where or I can’t be that far.

[JA 153].

To be clear, the mere fact that an asylum applicant obtains identification documents while in hiding would not itself provide “a valid, cogent reason for a negative credibility finding.” Secaida-Rosales v. INS, 331 F.3d 297, 310 (2d Cir.2003). As we have recognized, those fleeing persecution have good reasons to seek legitimate travel documents before leaving the country in which they fear harm and they may well be able to procure them, depending on the surrounding circumstances. See id.

At the same time, the IJ was entitled to question the intensity of Diallo’s stated fear that “if they capture me again, I’m going to be killed” [JA 148] in light of Diallo’s shifting explanations for running the risk of exposing himself so soon after his detention — including his explanation that he needed travel documents to facilitate his return. See Jin Hui Gao v. U.S. Att’y Gen., 400 F.3d 963, 964 (2d Cir.2005)(concluding that “the IJ had a supportable basis for finding aspects of [petitioner’s] testimony inherently implausible and for concluding that these implausibilities further diminished [petitioner’s] credibility”). Though the IJ neglected ex[726]*726plicitly to discuss these various explanations in rendering his overall conclusion that Diallo’s testimony on this subject was not credible, “we presume that an IJ has taken into account all of the evidence before him, unless the record compellingly suggests otherwise.” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n. 17 (2d Cir.2006). See also Ming Shi Xue v. BIA, 439 F.3d 111, 127 (2d Cir.2006)(noting that an IJ need not “call attention to clear discrepancies in an alien’s testimony ... when those contradictions were obvious to everyone”).

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238 F. App'x 723, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diallo-v-gonzales-ca2-2007.