     16-1933
     Boota v. Sessions
                                                                                       BIA
                                                                                  Wright, IJ
                                                                               A073 556 209

                              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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   13th day of October, two thousand seventeen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            RAYMOND J. LOHIER, JR.,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   MALIK BOOTA, AKA MOHAMMAD BOOFA,
14   AKA MALIK MOHAMMAD, AKA ABDUL
15   RAUF,
16            Petitioner,
17
18                       v.                                          16-1933
19                                                                   NAC
20   JEFFERSON B. SESSIONS III, UNITED
21   STATES ATTORNEY GENERAL,
22            Respondent.
23   _____________________________________
24
25   FOR PETITIONER:                     Amy Nussbaum Gell, Gell & Gell, New
26                                       York, New York.
27
28   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
29                                       Assistant Attorney General; Jesse
30                                       Matthew Bless, Senior Litigation
31                                       Counsel; Barbara Joan Leen, Trial
1                                   Attorney, Office of Immigration
2                                   Litigation, United States
3                                   Department of Justice, Washington,
4                                   DC.
5
6          UPON DUE CONSIDERATION of this petition for review of a

7    Board of Immigration Appeals (“BIA”) decision, it is hereby

8    ORDERED, ADJUDGED, AND DECREED that the petition for review is

9    DENIED.

10         Petitioner Malik Boota, a native and citizen of Pakistan,

11   seeks review of a May 19, 2016, decision of the BIA, affirming

12   a February 26, 2015, decision of an Immigration Judge (“IJ”)

13   denying his application for asylum, withholding of removal, and

14   relief under the Convention Against Torture (“CAT”).            In re

15   Malik Boota, No. A073 556 209 (B.I.A. May 19, 2016), aff’g No.

16   A073 556 209 (Immig. Ct. N.Y. City Feb. 26, 2015).          We assume

17   the   parties’   familiarity    with   the    underlying   facts   and

18   procedural history in this case.

19         Under the circumstances of this case, we have reviewed the

20   IJ’s decision as modified by the BIA.        See Xue Hong Yang v. U.S.

21   Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).                The

22   applicable standards of review are well established.            See 8

23   U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

24   165-66 (2d Cir. 2008).

                                       2
1        For asylum applications like Boota’s, governed by the REAL

2    ID Act, the agency may, “[c]onsidering the totality of the

3    circumstances,” base a credibility finding on an asylum

4    applicant’s “candor,” and on inconsistencies in an applicant’s

5    statements and documentary evidence, “without regard to

6    whether” those inconsistencies go “to the heart of the

7    applicant’s claim.”    8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

8    Lin, 534 F.3d at 163-64.     “We defer . . . to an IJ’s

9    credibility determination unless, from the totality of the

10   circumstances, it is plain that no reasonable fact-finder could

11   make such an adverse credibility ruling.”   Xiu Xia Lin, 534 F.3d

12   at 167.   Substantial evidence supports the adverse credibility

13   determination.

14       As an initial matter, Boota’s concession that he provided

15   false information in his 1995 application is sufficient,

16   standing alone, to sustain the adverse credibility

17   determination.     See Siewe v. Gonzales, 480 F.3d 160, 170 (2d

18   Cir. 2007) (“[A] single false document or a single instance of

19   false testimony may (if attributable to petitioner) infect the

20   balance of the alien’s uncorroborated or unauthenticated

21   evidence.”).     In addition, the record reflects a number of

22   inconsistencies and a lack of candor that further undermine
                                     3
1    Boota’s credibility.    Accordingly, as we discern no error in

2    the agency’s adverse credibility determination, the petition

3    for review is denied.

4        The agency reasonably relied on Boota’s inconsistent

5    testimony regarding his presence in the United States.      Boota

6    testified that he did not leave the United States between 1994

7    and 2002 after he lost his 1994 asylum case and was ordered

8    excluded.    However, his 1995 asylum application states that he

9    entered the United States from Pakistan in January 1995.    When

10   confronted with this discrepancy, Boota testified to the date

11   in the 1995 application, but asserted that he had destroyed the

12   passport he entered on.    This lack of evidence makes Boota

13   unable to resolve the inconsistency.     See Biao Yang v.

14   Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).   The agency was not

15   compelled to credit Boota’s explanation that he forgot why he

16   lied about his 1995 entry because it does not resolve any

17   discrepancy.    See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.

18   2005) (“A petitioner must do more than offer a plausible

19   explanation for his inconsistent statements to secure relief;

20   he must demonstrate that a reasonable fact-finder would be

21   compelled to credit his testimony.” (internal citation

22   omitted)).
                                     4
1        Boota’s 1995 and 2009 applications were also inconsistent

2    regarding the alleged harm in Pakistan: the 1995 application

3    reflects two arrests in 1992 and 1994, but the 2009 application

4    omits the arrests.   This inconsistency is compounded by Boota’s

5    own conflicting testimony, first that he was never arrested in

6    any country other than the United States, but then that he stayed

7    at a police station “once or twice” in Pakistan.     Boota argues

8    that the inconsistencies regarding his arrests do not support

9    an adverse credibility finding because of his lack of education

10   and understanding of the term “arrest.”        The agency was not

11   required to accept this explanation.     Id.    Moreover, Boota’s

12   testimony about arrests in October 1992 and June 1994 are

13   contradicted by the fact that he was in exclusion proceedings

14   in the United States from September 1992 until August 1994.

15       The adverse credibility determination is bolstered by the

16   IJ’s finding of a repeated lack of candor.       8 U.S.C.

17   § 1158(b)(1)(B)(iii) (providing that an IJ can rely on

18   “demeanor, candor, or responsiveness”).     Boota admitted that

19   he intentionally hid that he had previously been denied asylum

20   and ordered excluded when applying for asylum in 1995 and, as

21   reflected above, he continued to contradict himself at the

22   hearing.
                                     5
1        Given the multiple inconsistencies and Boota’s lack of

2    candor, it cannot be said “that no reasonable fact-finder could

3    make such a credibility ruling.”    Xiu Xia Lin, 534 F.3d at 167.

4    Because all forms of relief (asylum, withholding of removal,

5    and CAT) were based on the same factual predicate, the adverse

6    credibility determination is dispositive of all three.      Paul

7    v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

8        For the foregoing reasons, the petition for review is

9    DENIED.    As we have completed our review, any stay of removal

10   that the Court previously granted in this petition is VACATED,

11   and any pending motion for a stay of removal in this petition

12   is DISMISSED as moot.    Any pending request for oral argument

13   in this petition is DENIED in accordance with Federal Rule of

14   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

15   34.1(b).

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




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