         10-456-ag
         Diallo v. Holder
                                                                                       BIA
                                                                                Mulligan, IJ
                                                                               A098 278 787
                                 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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 8th day of November, two thousand ten.
 5
 6       PRESENT:
 7                ROGER J. MINER,
 8                JOSEPH M. McLAUGHLIN,
 9                ROBERT A. KATZMANN,
10                       Circuit Judges.
11       _______________________________________
12
13       THIERNO ABDOULAYE DIALLO,
14                Petitioner,
15
16                          v.                                  10-456-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                  Ronald S. Salomon, New York, New
24                                        York.
25
26       FOR RESPONDENT:                  Tony West, Assistant Attorney
27                                        General; Jennifer Paisner Williams,
28                                        Senior Litigation Counsel; Lauren E.
29                                        Fascett, Trial Attorney, Office of
30                                        Immigration Litigation, Civil
31                                        Division, United States Department
                                          of Justice, Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

 2   decision of the Board of Immigration Appeals (“BIA”), it is

 3   hereby ORDERED, ADJUDGED, AND DECREED that the petition for

 4   review is GRANTED.

 5       Petitioner Thierno Abdoulaye Diallo (“Diallo”), a

 6   native and citizen of Guinea, seeks review of a January 8,

 7   2010 order of the BIA, affirming the February 15, 2008

 8   decision of Immigration Judge (“IJ”) Thomas J. Mulligan,

 9   denying Diallo’s applications for asylum, withholding of

10   removal, and relief under the Convention Against Torture

11   (“CAT”).     In re Diallo, No. A098 278 787 (B.I.A. Jan. 8,

12   2010), aff’g No. A098 278 787 (Immigr. Ct. N.Y. City Feb.

13   15, 2008).    We assume the parties’ familiarity with the

14   underlying facts and procedural history of the case.

15       Under the circumstances of this case, where “the BIA

16   agrees with the IJ’s conclusion that a petitioner is not

17   credible,” we review both the IJ’s and the BIA’s decisions

18   “for the sake of completeness.”       Yun-Zui Guan v. Gonzales,

19   432 F.3d 391, 394 (2d Cir. 2005); see Zaman v. Mukasey, 514

20   F.3d 233, 237 (2d Cir. 2008).       The applicable standards of

21   review are well-established.     See 8 U.S.C. § 1252(b)(4)(B)

22   (“[T]he administrative findings of fact are conclusive

23   unless any reasonable adjudicator would be compelled to

                                     2
 1   conclude to the contrary.”); Yanqin Weng v. Holder, 562 F.3d

 2   510, 513 (2d Cir. 2009) (“The substantial evidence standard

 3   of review applies, and we uphold the IJ’s factual findings

 4   if they are supported by reasonable, substantial and

 5   probative evidence in the record.” (internal quotation marks

 6   and citations omitted)).

 7       Although we generally afford particular deference to an

 8   IJ’s assessment of an applicant’s demeanor, Jin Chen v. U.S.

 9   Dep’t of Justice, 426 F.3d 104, 113 (2d Cir. 2005), we have

10   never held that a demeanor finding alone is substantial

11   evidence sufficient to support an adverse credibility

12   determination, see Li Hua Lin v. U.S. Dep’t of Justice, 453

13   F.3d 99, 109 (2d Cir. 2006) (holding that this Court can be

14   “more confident in [its] review of observations about an

15   applicant’s demeanor where . . . they are supported by

16   specific examples of inconsistent testimony”); see also

17   Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004)

18   (“Although credibility determinations are entitled to the

19   same deference on review as other factual determinations,

20   the fact that the [agency] has relied primarily on

21   credibility grounds . . .   cannot insulate the decision from

22   review.”).   Indeed, we have indicated in other cases that

23   certain factors standing alone may not be sufficient to

                                   3
 1   support an IJ’s denial of relief.   Cf. Kone v. Holder, 596

 2   F.3d 141, 148 (2d Cir. 2010) (holding that the mere fact

 3   that a petitioner took voluntary trips back to his home

 4   country, standing alone, does not suggest either any

 5   fundamental change in circumstances or the possibility of

 6   internal relocation); Diallo v. I.N.S., 232 F.3d 279, 287

 7   (2d Cir. 2000) (holding that a failure to corroborate one’s

 8   testimony with supporting evidence cannot form the sole

 9   basis for an adverse credibility determination).   Here, the

10   IJ based his adverse credibility determination solely on

11   Diallo’s demeanor, and, although the IJ noted that Diallo

12   became increasingly nervous during cross-examination, he did

13   not point to any specific portions of testimony or anything

14   else in the record to support the adverse credibility

15   determination.   Because the BIA has not addressed whether a

16   demeanor finding alone is sufficient ground for an adverse

17   credibility determination, see, e.g., Matter of A-S-, 21 I.

18   & N. Dec. 1106 (B.I.A. 1998), we remand for the BIA to

19   address the issue in the first instance.

20       For the foregoing reasons, the petition for review is

21   GRANTED, the BIA’s order is VACATED, and the case REMANDED

22   for further proceedings consistent with this Order.     As we

23   have completed our review, any stay of removal that the

                                   4
 1   Court previously granted in this petition is VACATED, and

 2   any pending motion for a stay of removal in this petition is

 3   DISMISSED as moot.   Any pending request for oral argument in

 4   this petition is DENIED in accordance with Federal Rule of

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

 6   34.1(b).

 7                               FOR THE COURT:
 8                               Catherine O’Hagan Wolfe, Clerk
 9
10
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