Kabore v. Garland

Opinion

20-3118 Kabore v. Garland BIA

Parchert, IJ

A206 283 607

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 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 21st day of December, two thousand twenty- 5 two. 6 7 PRESENT: 8 WILLIAM J. NARDINI, 9 BETH ROBINSON, 10 ALISON J. NATHAN, 11 Circuit Judges. 12 _____________________________________ 13 14 SIDBEWENIM OLIVIER KABORE, 15 Petitioner, 16 17 v. 20-3118 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Evan M. Goldberg, Esq., 25 Washington, DC. 26 27 FOR RESPONDENT: Brian Boynton, Acting Assistant 28 Attorney General; Anthony C. 29 Payne, Assistant Director; Raya 30 Jarawan, Trial Attorney, Office of 31 Immigration Litigation, United 32 States Department of Justice,

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1 Washington, DC. 2 3 UPON DUE CONSIDERATION of this petition for review of a

4 Board of Immigration Appeals (“BIA”) decision, it is hereby 5 ORDERED, ADJUDGED, AND DECREED that the petition for review 6 is DENIED. 7 Petitioner Sidbewenim Olivier Kabore, a native and 8 citizen of Burkina Faso, seeks review of an August 13, 2020 9 decision of the BIA affirming a June 8, 2018 decision of an 10 Immigration Judge (“IJ”) denying Kabore’s application for 11 asylum, withholding of removal, and relief under the 12 Convention Against Torture (“CAT”). In re Sidbewenim Olivier 13 Kabore, No. A206 283 607 (B.I.A. Aug. 13, 2020), aff’g No. 14 A206 283 607 (Immig. Ct. N.Y. City June 8, 2018). We assume 15 the parties’ familiarity with the underlying facts and 16 procedural history. 17 We have reviewed the IJ’s decision as supplemented by 18 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d 19 Cir. 2005). 20 I. Adverse Credibility Determination 21 We review an adverse credibility determination under a 22 substantial evidence standard, Hong Fei Gao v. Sessions, 891 23 F.3d 67, 76 (2d Cir. 2018), and “the administrative findings 24 of fact are conclusive unless any reasonable adjudicator

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1 would be compelled to conclude to the contrary,” 8 U.S.C. 2 § 1252(b)(4)(B). “Considering the totality of the 3 circumstances, and all relevant factors, a trier of fact may 4 base a credibility determination on the demeanor, candor, or 5 responsiveness of the applicant . . . , the inherent 6 plausibility of the applicant’s . . . account, the 7 consistency between the applicant’s . . . written and oral 8 statements (whenever made and whether or not under oath, and 9 considering the circumstances under which the statements were 10 made), the internal consistency of each such statement, the 11 consistency of such statements with other evidence of record 12 . . . , and any inaccuracies or falsehoods in such statements, 13 without regard to whether an inconsistency, inaccuracy, or 14 falsehood goes to the heart of the applicant’s claim, or any 15 other relevant factor.” Id. § 1158(b)(1)(B)(iii). “We defer 16 . . . to an IJ’s credibility determination unless, from the 17 totality of the circumstances, it is plain that no reasonable 18 fact-finder could make such an adverse credibility ruling.” 19 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); 20 accord Hong Fei Gao, 891 F.3d at 76. Substantial evidence 21 supports the adverse credibility determination. 22 Kabore alleged that he was arrested twice in connection 23 with his participation in anti-government protests, that

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1 armed men surrounded his home, and that his father was also 2 arrested. The agency reasonably relied on inconsistencies 3 between the written statement Kabore submitted with his 4 asylum application and a later affidavit, and between the 5 corresponding inconsistencies between his statements at his 6 asylum interview and his hearing testimony. See 8 U.S.C. 7 § 1158(b)(1)(B)(iii). The record confirms inconsistencies 8 regarding the date of Kabore’s first arrest, how Kabore 9 obtained his release from detention, and when his father was 10 arrested. Moreover, Kabore admitted making false statements 11 at his interview. The admitted falsehoods and multiple 12 inconsistencies concerning the alleged persecution constitute 13 substantial evidence for the adverse credibility 14 determination. See Likai Gao v. Barr, 968 F.3d 137, 145 n.8 15 (2d Cir. 2020) (“[E]ven a single inconsistency might preclude 16 an alien from showing that an IJ was compelled to find him 17 credible. Multiple inconsistencies would so preclude even 18 more forcefully.”); Siewe v. Gonzales, 480 F.3d 160, 170 (2d 19 Cir. 2007) (“[W]here an IJ’s finding of fabrication 20 (supported by substantial evidence) serves as the basis for 21 discrediting other evidence, a reviewing court is in no 22 position to conclude that the discrediting of the remaining 23 evidence is unsupported by substantial evidence.”).

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1 The agency was not compelled to accept Kabore’s 2 explanations—that his former non-attorney representative was 3 responsible for the errors, that he did not know of the false 4 information until after he retained new counsel, that he 5 believed he had to testify consistently with his application, 6 and that he believed that he could modify biographical 7 information but not change elements of his asylum claim— 8 because Kabore made false statements at the interview not 9 included in his written statement and about issues other than 10 biographical information. See Majidi v. Gonzales, 430 F.3d 11 77, 80 (2d Cir. 2005) (“A petitioner must do more than offer 12 a plausible explanation for his inconsistent statements to 13 secure relief; he must demonstrate that a reasonable fact- 14 finder would be compelled to credit his testimony.” 15 (quotation marks omitted)). Given the multiple 16 inconsistencies that call into question Kabore’s alleged 17 persecution, substantial evidence supports the agency’s 18 adverse credibility determination. See Xiu Xia Lin, 534 F.3d 19 at 167. The adverse credibility determination is dispositive 20 of asylum, withholding of removal, and CAT relief because all 21 three forms of relief were based on the same factual 22 predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d 23 Cir. 2006).

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1 II. Motion to Remand 2 We review the BIA’s denial of Kabore’s motion to remand 3 for the IJ to consider a religious persecution claim for abuse 4 of discretion and review any country conditions determination 5 for substantial evidence. See Li Yong Cao v. U.S. Dep’t of 6 Just., 421 F.3d 149, 156–57 (2d Cir. 2005); Jian Hui Shao v. 7 Mukasey, 546 F.3d 138, 168–69 (2d Cir. 2008). “A motion to 8 remand that relies on newly available evidence is held to the 9 substantive requirements of a motion to reopen.” Li Yong 10 Cao, 421 F.3d at 156. “A motion to reopen proceedings shall 11 not be granted unless it appears to the Board that evidence 12 sought to be offered is material and was not available and 13 could not have been discovered or presented at the former 14 hearing; nor shall any motion to reopen for the purpose of 15 affording the alien an opportunity to apply for any form of 16 discretionary relief be granted if it appears that the alien’s 17 right to apply for such relief was fully explained to him or 18 her and an opportunity to apply therefore was afforded at the 19 former hearing, unless the relief is sought on the basis of 20 circumstances that have arisen subsequent to the hearing.” 21 8 C.F.R. § 1003.2(c)(1) (version in effect until Jan. 14, 22 2021). The movant bears the “heavy burden of demonstrating 23 a likelihood that the new evidence presented would alter the

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1 result in the case.” Li Yong Cao, 421 F.3d at 156 (quotation 2 marks omitted). 3 Kabore moved for remand, asserting that he was a 4 practicing Catholic, and that new evidence showed worsening 5 persecution of Christians since his 2018 hearing. We find no 6 abuse of discretion in the BIA’s denial of the motion. The 7 record reflected general violence and violence against 8 Christians at and before the time of Kabore’s hearing before 9 the IJ, and Kabore did not identify a material change in 10 conditions as required to excuse his failure to raise a claim 11 of religious persecution in his original proceedings. See 8 12 C.F.R. § 1003.2(c)(1). 13 For the foregoing reasons, the petition for review is 14 DENIED. All pending motions and applications are DENIED and 15 stays VACATED.

16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, 18 Clerk of Court