18-1692 Niang v. Barr BIA Reid, IJ A209 426 111 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 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 4th day of September, two thousand twenty. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 DENNY CHIN, 9 JOSEPH F. BIANCO, 10 Circuit Judges. 11 _____________________________________ 12 13 ABDOU LAHAD NIANG, 14 Petitioner, 15 16 v. 18-1692 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Kathryn C. Meyer, International 24 Refugee Assistance Project, New 25 York, NY. 26 27 FOR RESPONDENT: Ethan P. Davis, Assistant Attorney 28 General; Sabatino F. Leo, Senior 29 Litigation Counsel; Tracey N. 30 McDonald, Trial Attorney, Office 1 of Immigration Litigation, United 2 States Department of Justice, 3 Washington, DC.
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Abdou Lahad Niang, a native and citizen of
9 Senegal, seeks review of a May 18, 2018 decision of the BIA
10 affirming an October 5, 2017 decision of an Immigration Judge
11 (“IJ”) denying his application for asylum, withholding of
12 removal, and relief under the Convention Against Torture
13 (“CAT”). In re Abdou Lahad Niang, No. A209 426 111 (B.I.A.
14 May 18, 2018), aff’g No. A209 426 111 (Immig. Ct. N.Y. City
15 Oct. 5, 2017). We assume the parties’ familiarity with the
16 underlying facts and procedural history.
17 We have reviewed the decisions of both the IJ and the
18 BIA. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d
19 Cir. 2005). The standards of review are well established.
20 See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891
21 F.3d 67, 76 (2d Cir. 2018). “Considering the totality of the
22 circumstances, and all relevant factors, a trier of fact may
23 base a credibility determination on the demeanor, candor, or
2 1 responsiveness of the applicant or witness, . . . the
2 consistency between the applicant’s . . . written and oral
3 statements . . . , the internal consistency of each such
4 statement, the consistency of such statements with other
5 evidence of record . . . and any inaccuracies or falsehoods
6 in such statements, without regard to whether an
7 inconsistency, inaccuracy, or falsehood goes to the heart of
8 the applicant’s claim, or any other relevant factor.” 8
9 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
10 credibility determination unless, from the totality of the
11 circumstances, it is plain that no reasonable fact-finder
12 could make such an adverse credibility ruling.” Xiu Xia Lin
13 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei
14 Gao, 891 F.3d at 76. Although one of the IJ’s findings is
15 questionable, substantial evidence supports the adverse
16 credibility determination given Niang’s inconsistent
17 statement regarding his persecution in Brazil and his lack of
18 reliable corroboration.
19 We agree with Niang that the agency erred in finding his
20 description of his injuries in Senegal vague, without first
21 eliciting further details. See Ming Shi Xue v. BIA, 439 F.3d
22 111, 122 (2d Cir. 2006) (“[W]here a petitioner’s testimony
3 1 was seemingly too vague, we have asked immigration judges to
2 request additional details before concluding that the
3 narrative was not credible.”).
4 However, with respect to Niang’s allegations of past harm
5 in Brazil, the agency reasonably relied on Niang’s
6 inconsistent descriptions of his claim. 8 U.S.C.
7 § 1158(b)(i)(B)(iii). In his asylum application, Niang
8 asserted that he feared returning to Brazil because people in
9 Brazil called him names such as “monkey” or “donkey” and
10 wanted to “misuse [him] sexually because of [his] height.”
11 Certified Administrative Record at 443. In contrast, he
12 testified that he dated a co-worker and her ex-boyfriend
13 became angry about the relationship and the fact that Niang
14 was black, so he continuously harassed Niang and attacked him
15 with a knife at work. Niang testified that his attacker was
16 arrested and jailed for one month but continued to harass and
17 spy on Niang after his release, and a group of the attacker’s
18 friends beat Niang and threatened to cut his genitals.
19 Although omissions are less probative than inconsistencies,
20 and an asylum applicant is not required to list every detail
21 to which he later testifies in as asylum application, the
22 agency did not err in relying on these differing descriptions
4 1 and the omission of the concrete allegations of harm from the
2 application. See Hong Fei Gao, 891 F.3d at 78–80 (weight
3 given to an omission depends, in part, on whether “facts are
4 ones that a credible petitioner would reasonably have been
5 expected to disclose under the relevant circumstances”);
6 Lianping Li v. Lynch, 839 F.3d 144, 150 (2d Cir. 2016)
7 (upholding adverse credibility determination where
8 petitioner’s “asylum application did not simply omit
9 incidents of persecution . . . [but rather] described the
10 same incident of persecution differently”). Moreover,
11 Niang’s reliance on Gurung v. Barr, 929 F.3d 56, 61 (2d Cir.
12 2019), is misplaced, as the inconsistencies between the
13 language of his application and his testimony were more than
14 trivial. See also Siewe v. Gonzales, 480 F.3d 160, 168 (2d
15 Cir. 2007) (“So long as there is a basis in the evidence for
16 a challenged inference, we do not question whether a different
17 inference was available or more likely.”).
18 Because the IJ properly found that Niang’s credibility
19 was questionable as to these events in Brazil, the IJ was
20 entitled to find that Niang’s testimony was not credible as
21 a whole. See Siewe, 480 F.3d at 167–68. And because Niang’s
22 testimony was improbable, the IJ reasonably relied on Niang’s
5 1 failure to rehabilitate his testimony with any reliable
2 corroborating evidence. “An applicant’s failure to
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18-1692 Niang v. Barr BIA Reid, IJ A209 426 111 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 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 4th day of September, two thousand twenty. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 DENNY CHIN, 9 JOSEPH F. BIANCO, 10 Circuit Judges. 11 _____________________________________ 12 13 ABDOU LAHAD NIANG, 14 Petitioner, 15 16 v. 18-1692 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Kathryn C. Meyer, International 24 Refugee Assistance Project, New 25 York, NY. 26 27 FOR RESPONDENT: Ethan P. Davis, Assistant Attorney 28 General; Sabatino F. Leo, Senior 29 Litigation Counsel; Tracey N. 30 McDonald, Trial Attorney, Office 1 of Immigration Litigation, United 2 States Department of Justice, 3 Washington, DC.
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Abdou Lahad Niang, a native and citizen of
9 Senegal, seeks review of a May 18, 2018 decision of the BIA
10 affirming an October 5, 2017 decision of an Immigration Judge
11 (“IJ”) denying his application for asylum, withholding of
12 removal, and relief under the Convention Against Torture
13 (“CAT”). In re Abdou Lahad Niang, No. A209 426 111 (B.I.A.
14 May 18, 2018), aff’g No. A209 426 111 (Immig. Ct. N.Y. City
15 Oct. 5, 2017). We assume the parties’ familiarity with the
16 underlying facts and procedural history.
17 We have reviewed the decisions of both the IJ and the
18 BIA. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d
19 Cir. 2005). The standards of review are well established.
20 See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891
21 F.3d 67, 76 (2d Cir. 2018). “Considering the totality of the
22 circumstances, and all relevant factors, a trier of fact may
23 base a credibility determination on the demeanor, candor, or
2 1 responsiveness of the applicant or witness, . . . the
2 consistency between the applicant’s . . . written and oral
3 statements . . . , the internal consistency of each such
4 statement, the consistency of such statements with other
5 evidence of record . . . and any inaccuracies or falsehoods
6 in such statements, without regard to whether an
7 inconsistency, inaccuracy, or falsehood goes to the heart of
8 the applicant’s claim, or any other relevant factor.” 8
9 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
10 credibility determination unless, from the totality of the
11 circumstances, it is plain that no reasonable fact-finder
12 could make such an adverse credibility ruling.” Xiu Xia Lin
13 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei
14 Gao, 891 F.3d at 76. Although one of the IJ’s findings is
15 questionable, substantial evidence supports the adverse
16 credibility determination given Niang’s inconsistent
17 statement regarding his persecution in Brazil and his lack of
18 reliable corroboration.
19 We agree with Niang that the agency erred in finding his
20 description of his injuries in Senegal vague, without first
21 eliciting further details. See Ming Shi Xue v. BIA, 439 F.3d
22 111, 122 (2d Cir. 2006) (“[W]here a petitioner’s testimony
3 1 was seemingly too vague, we have asked immigration judges to
2 request additional details before concluding that the
3 narrative was not credible.”).
4 However, with respect to Niang’s allegations of past harm
5 in Brazil, the agency reasonably relied on Niang’s
6 inconsistent descriptions of his claim. 8 U.S.C.
7 § 1158(b)(i)(B)(iii). In his asylum application, Niang
8 asserted that he feared returning to Brazil because people in
9 Brazil called him names such as “monkey” or “donkey” and
10 wanted to “misuse [him] sexually because of [his] height.”
11 Certified Administrative Record at 443. In contrast, he
12 testified that he dated a co-worker and her ex-boyfriend
13 became angry about the relationship and the fact that Niang
14 was black, so he continuously harassed Niang and attacked him
15 with a knife at work. Niang testified that his attacker was
16 arrested and jailed for one month but continued to harass and
17 spy on Niang after his release, and a group of the attacker’s
18 friends beat Niang and threatened to cut his genitals.
19 Although omissions are less probative than inconsistencies,
20 and an asylum applicant is not required to list every detail
21 to which he later testifies in as asylum application, the
22 agency did not err in relying on these differing descriptions
4 1 and the omission of the concrete allegations of harm from the
2 application. See Hong Fei Gao, 891 F.3d at 78–80 (weight
3 given to an omission depends, in part, on whether “facts are
4 ones that a credible petitioner would reasonably have been
5 expected to disclose under the relevant circumstances”);
6 Lianping Li v. Lynch, 839 F.3d 144, 150 (2d Cir. 2016)
7 (upholding adverse credibility determination where
8 petitioner’s “asylum application did not simply omit
9 incidents of persecution . . . [but rather] described the
10 same incident of persecution differently”). Moreover,
11 Niang’s reliance on Gurung v. Barr, 929 F.3d 56, 61 (2d Cir.
12 2019), is misplaced, as the inconsistencies between the
13 language of his application and his testimony were more than
14 trivial. See also Siewe v. Gonzales, 480 F.3d 160, 168 (2d
15 Cir. 2007) (“So long as there is a basis in the evidence for
16 a challenged inference, we do not question whether a different
17 inference was available or more likely.”).
18 Because the IJ properly found that Niang’s credibility
19 was questionable as to these events in Brazil, the IJ was
20 entitled to find that Niang’s testimony was not credible as
21 a whole. See Siewe, 480 F.3d at 167–68. And because Niang’s
22 testimony was improbable, the IJ reasonably relied on Niang’s
5 1 failure to rehabilitate his testimony with any reliable
2 corroborating evidence. “An applicant’s failure to
3 corroborate his or her testimony may bear on credibility,
4 because the absence of corroboration in general makes an
5 applicant unable to rehabilitate testimony that has already
6 been called into question.” Biao Yang v. Gonzales, 496 F.3d
7 268, 273 (2d Cir. 2007). The IJ reasonably declined to give
8 weight to letters from Niang’s cousin and a family friend,
9 particularly as Niang testified that his cousin did not have
10 independent knowledge, his cousin’s letter was a single
11 paragraph without detail, and the other letter was from a
12 family friend that Niang had not seen since 1998 and that did
13 not address his personal circumstances. See Y.C. v. Holder,
14 741 F.3d 324, 332 (2d Cir. 2013) (“We generally defer to the
15 agency’s evaluation of the weight to be afforded an
16 applicant’s documentary evidence.”).
17 Accordingly, although the vagueness finding is
18 problematic, substantial evidence supports the agency’s
19 adverse credibility determination under the totality of the
20 circumstances, given the inconsistency as to Niang’s alleged
21 harm in Brazil and the lack of reliable corroboration. See
22 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167;
6 1 Biao Yang, 496 F.3d at 273; see also Xiao Ji Chen v. U.S.
2 Dep’t of Justice, 471 F.3d 315, 335 (2d Cir. 2006) (holding
3 that, despite error, remand is futile if “we can state with
4 confidence that the same decision would be made if we were to
5 remand”). That determination is dispositive of asylum,
6 withholding of removal, and CAT relief because all three
7 claims were based on the same factual predicate. See Paul
8 v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
9 For the foregoing reasons, the petition for review is
10 DENIED. All pending motions and applications are DENIED and
11 stays VACATED.
12 FOR THE COURT: 13 Catherine O’Hagan Wolfe, 14 Clerk of Court