Diallo v. Mukasey

263 F. App'x 146
Court of Appeals for the Second Circuit·Decided February 7, 2008·No. No. 07-0533-ag·Published·Cited by 1 cases

Opinion

SUMMARY ORDER

Mamadou Sarafou Diallo, a native and citizen of Guinea, seeks review of a January 17, 2007 order of the Board of Immigration Appeals (“BIA”) affirming the June 8, 2005 decision of Immigration Judge (“IJ”) Noel Ferris, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Mamadou Sarafou Diallo, No. A96 241 649 (B.I.A. Jan. 17, 2007), aff'g No. A96 241 649 (Immig. Ct. N.Y. City June 8, 2005). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

A. Motion to Dismiss

As an initial matter, the government has filed a motion to dismiss Diallo’s petition for review. In its motion, the government argues that Diallo has waived any challenge to the IJ’s adverse credibility determination by failing to raise any such challenge in his brief to this Court. We note, however, that Diallo’s brief specifically challenges the IJ’s findings that he submitted a fraudulent vaccination card and that there were discrepancies in the record. Indeed, he asserts that these findings should not have undermined his credibility as they did not go to the heart of his claims and argues that he offered sufficient explanations for the discrepancies in the record.

The government also contends that Diallo’s petition for review should be dismissed because he failed to exhaust his challenge to the IJ’s frivolous finding before the BIA. However, although the BIA concluded that Diallo had “not meaningfully challenged] the Immigration Judge’s actual findings and analysis underlying her ruling that he filed a frivolous application for asylum,” Diallo’s notice of appeal to the BIA specifically challenged the IJ’s frivolous finding by arguing that his submission of a fraudulent document should have been excused as the document was created to aid his escape from persecution. Therefore, Diallo’s identical argument before this Court was raised to the BIA and was therefore exhausted. Cf. Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir.2006) (recognizing that a petitioner must exhaust all claims by raising the issue to the BIA or “identify[ing], even by implication, any error in the IJ’s ruling on [a] claim”).

As Diallo did not waive his challenge of the agency’s adverse credibility determina[148]*148tion before this Court, and as he did not fail to exhaust his challenge of the IJ’s frivolous finding, the government’s motion to dismiss is without merit and will be denied.

B. Petition for Review

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, this Court reviews both the BIA’s and IJ’s opinions— or more precisely, the Court reviews 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). This Court reviews the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. 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. Dept. of Justice, 494 F.3d 296, 305 (2d Cir.2007).

Here, we find that substantial evidence supports the agency’s adverse credibility determination. In the asylum context, an asylum applicant’s presentation of “a single false document or a single instance of false testimony may (if attributable to the petitioner) infect the balance of the alien’s uncorroborated or unauthenticated evidence.” Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.2007); see also Borovikova v. U.S. Dep’t of Justice, 435 F.3d 151, 157-58 (2d Cir.2006) (concluding that the submission of a fraudulent document in support of an asylum application alone may constitute substantial evidence to support an adverse credibility finding). There are, however, limitations to the “maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) .... ” Siewe, 480 F.3d at 170 (internal quotation marks omitted). For example, a finding that an applicant submitted false evidence should not necessarily negatively impact the credibility of the applicant’s additional testimony or evidence where the false documents were created for the purpose of escaping persecution. Id. at 170-71.

Here, the IJ, relied in part on a report from the Forensic Document Laboratory of the U.S. Department of Homeland Security that provided that the summons Diallo submitted did not conform to genuine Guinean summons contained in the office’s reference materials and further found that the dates in the summons had been altered. Aside from his attorney’s comments that he did not understand the “significance of the alterations,” Diallo offered no explanation for the alterations. Moreover, before this Court, Diallo acknowledges the agency’s reliance on his submission of the fraudulent summons, but makes no specific challenge to that finding. Accordingly, we deem any such challenge waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir. 2005).

As to Diallo’s submission of a fraudulent vaccination card, Diallo admitted on cross-examination that the document was false. Although Diallo alleged that he had procured the document because it was necessary to leave Guinea and enter the United States, the IJ reasonably discredited this explanation because the vaccination card was in Diallo’s name and he claimed to have left Guinea under another name. Accordingly, the IJ informed Diallo of her conclusion that he submitted the vaccination card to the Immigration Court in order to mislead the Court as to the dates he was in Guinea. Diallo offered no response.

Although false documents created to escape persecution may warrant limiting the falsus in uno, falsus in omnibus maxim, see Siewe, 480 F.3d at 170, this is not such a case because, as the IJ reasonably found, [149]*149a vaccination card issued in Diallo’s name would not have assisted his escape as he used another person’s identity to flee that country. Moreover, the IJ’s reliance on this finding was reasonable where Diallo failed to explain why he submitted the admittedly fraudulent vaccination card as authentic when it was no longer necessary to avoid persecution. Cf. Rui Ying Lin v. Gonzales, 445 F.3d 127

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