Opinion
15-391 NAC
09-02-2016
SULAIMAN JALLOH, Petitioner, v. LORETTA E. LYNCH, UNITED STATES ATTORNEY GENERAL, Respondent.
FOR PETITIONER: Thomas V. Massucci, New York, N.Y. FOR RESPONDENT: Benjamin C. Mizer, Acting Assistant Attorney General; John S. Hogan, Assistant Director; Jennifer P. Levings, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2nd day of September, two thousand sixteen. PRESENT: JON O. NEWMAN, DENNIS JACOBS, GERARD E. LYNCH, Circuit Judges.
FOR PETITIONER:
Thomas V. Massucci, New York, N.Y.
FOR RESPONDENT:
Benjamin C. Mizer, Acting Assistant Attorney General; John S. Hogan, Assistant Director; Jennifer P. Levings, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.
Petitioner Sulaiman Jalloh, a native and citizen of Sierra Leone, seeks review of a January 13, 2015, decision of the BIA, affirming a July 25, 2013, decision of an Immigration Judge ("IJ") denying Jalloh's application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). In re Sulaiman Jalloh, No. A095 569 350 (B.I.A. Jan. 13, 2015), aff'g No. A095 569 350 (Immig. Ct. N.Y. City July 25, 2013). We assume the parties' familiarity with the underlying facts and procedural history in this case.
Under the circumstances of this case, we review the IJ's decision as modified by the BIA. See Xue Hong Yang v. U.S. Dep't of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The applicable standards of review are well established. 8 U.S.C. § 1252(b)(4)(B); Yangin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
The pre-REAL ID Act credibility standard set forth in Secaida-Rosales v. INS, 331 F.3d 297 (2d Cir. 2003), applies to this case because Jalloh first applied for asylum in 2002 and his amended application was based on the same claim. See Liang Chen v. U.S. Att'y Gen., 454 F.3d 103, 106 n.2 (2d Cir. 2006); see also Matter of M-A-F-, 26 I. & N. Dec. 651 (B.I.A. 2015). That standard requires that an adverse credibility determination be based on "specific, cogent reasons" that "bear a legitimate nexus" to the finding, and any discrepancy must be "substantial" when measured against the record as a whole. See Secaida-Rosales, 331 F.3d at 307-08 (internal quotation marks and citations omitted). Inconsistencies need not be fatal if they are "minor and isolated," and the testimony is otherwise generally consistent, rational, and believable. See Diallo v. INS, 232 F.3d 279, 288 (2d Cir. 2000). Stated another way, the credibility determination must be based on "material inconsistencies that 'reach[] to the heart of the claim' of persecution." Xian Tuan Ye v. Dep't of Homeland Sec., 446 F.3d 289, 297 (2d Cir. 2006).
"Our review of the IJ's credibility findings is highly deferential, and the IJ's administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." Xu Duan Dong v. Ashcroft, 406 F.3d 110, 111 (2d Cir. 2005) (internal quotation marks and citations omitted). "Where the IJ's adverse credibility finding is based on specific examples in the record of inconsistent statements by the asylum applicant about matters material to his claim of persecution . . . a reviewing court will generally not be able to conclude that a reasonable adjudicator was compelled to find otherwise." Id. (internal quotation marks and citations omitted).
Jalloh does not contest the presence of the inconsistencies about whether he carried stolen property and ammunition for the Revolutionary United Front or argue that they were adequately explained; rather, he contends that those inconsistencies do not go to the heart of his claim. He is incorrect. In Diallo, we characterized as "minor and isolated" certain inconsistencies over petitioner's place of birth and residence, the date of his arrest, and the amount of time he spent in prison and in a refugee camp. 232 F.3d at 288. Here, however, the inconsistencies directly relate to aspects of the alleged mistreatment suffered by Jalloh and therefore bear a legitimate nexus to the basis of his application. See Xian Tuan Ye, 446 F.3d at 294 ("[W]e agree with the BIA's assessment that [the applicant's] inconsistent statements concerning the nature of his mistreatment support the IJ's adverse credibility finding."); Zhou Yun Zhang v. INS, 386 F.3d 66, 77 (2d Cir. 2004) (finding that inconsistencies concerning petitioner's wife's forced sterilization "were not the sort of 'minor and isolated' discrepancies so plainly immaterial to a persecution claim that no reasonable fact-finder could use them as a basis for an adverse credibility ruling" (citation omitted)), overruled on other grounds, Shi Liang Lin v. U.S. Dep't of Justice, 494 F.3d 296 (2d Cir. 2007).
Although reasonable minds could reach different conclusions as to Jalloh's credibility on the basis of these inconsistencies, "we will not weigh the inconsistencies for ourselves to see if we would reach the same conclusions as the IJ; rather, our review is an exceedingly narrow one." Liang Chen v. U.S. Atty. Gen., 454 F.3d 103, 107 (2d Cir. 2006) (internal quotation marks and citations omitted). Because the inconsistences about Jalloh's forced labor would allow a reasonable adjudicator to disbelieve his account of his persecution, the credibility determination is supported by substantial evidence. See id. Given that substantial evidence supports the adverse credibility determination, the agency's denial of Jalloh's applications for asylum, withholding of removal, and CAT relief was proper because each claim rested on the same factual predicate. Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is DENIED. Petitioner's pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk