    14-728
    Mazibuko v. Lynch
                                                                                       BIA
                                                                                Montante, IJ
                                                                               A029 010 395
                             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.

         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
    1st day of July, two thousand fifteen.

    PRESENT:
             ROBERT D. SACK,
             REENA RAGGI,
             GERARD E. LYNCH,
                  Circuit Judges.
    _____________________________________

    DAVID DUDUZA MAZIBUKO,
             Petitioner,

                        v.
                                                                            14-728
                                                                            NAC
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                      Samuel N. Iroegbu, Albany, NY.

    FOR RESPONDENT:                      Joyce R. Branda, Acting Assistant
                                         Attorney General; Anthony C. Payne,
                                         Senior Litigation Counsel; Yedidya
                                         Cohen, Trial Attorney; Jonathan K.
                            Ross, Law Clerk, 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 David Duduza Mazibuko, a native and citizen of

South Africa, seeks review of a February 12, 2014, decision of

the BIA affirming a January 26, 2012, decision of an Immigration

Judge (“IJ”) denying Mazibuko’s application for asylum,

withholding of removal, and relief under the Convention Against

Torture (“CAT”).    In re Mazibuko, No. A029 010 395 (B.I.A. Feb.

12, 2014), aff’g No. A029 010 395 (Immig. Ct. Buffalo Jan. 12,

2012).    We assume the parties’ familiarity with the underlying

facts and procedural history in this case.

    We have reviewed 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).    Because the BIA declined to review the IJ’s

pretermission of Mazibuko’s asylum application, we have

reviewed only the adverse credibility determination.    Id.   The

applicable standards of review are well established.      See
8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534

F.3d 162, 165-66 (2d Cir. 2008).

      For asylum applications governed by the REAL ID Act, such

as Mazibuko’s, the IJ may, considering the totality of the

circumstances, base a credibility finding on an asylum

applicant’s demeanor, candor, or responsiveness, or on

inconsistencies in his statements and other record evidence,

without regard to whether they go “to the heart of the

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

Lin, 534 F.3d at 165.    Here, a totality of the circumstances,

including the IJ’s demeanor finding, inconsistencies in

Mazibuko’s testimony, and the lack of corroborating evidence,

supports the IJ’s credibility determination.

    First, the IJ reasonably found that Mazibuko’s testimony

was evasive and non-responsive.     For example, the IJ asked

Mazibuko at least five times what paperwork he had that would

prove he was a member of the Kwa-Thema Crisis Committee and where

that paperwork would be, but Mazibuko never answered the

question directly.

    The IJ also reasonably found Mazibuko’s testimony

inconsistent with his asylum application.    Mazibuko testified

                                3
that he was harmed only on one occasion, around 2000.     His

personal statement accompanying his asylum application,

however, describes in detail several earlier incidents in which

he was arrested, detained, or tortured.    The agency may

reasonably rely on omissions in a petitioner’s testimony in

evaluating credibility.   See Xiu Xia Lin, 534 F.3d at 166 n.3

(“An inconsistency and an omission are . . . functionally

equivalent.”).

    Furthermore, Mazibuko’s testimony regarding the dates he

left the United States and entered South Africa was internally

inconsistent and unclear.    He testified inconsistently as to

whether he left the United States in 1991 or 1995, and whether

he returned to South Africa in 1998 or traveled back and forth

between South Africa and other African countries between 1995

and 1998.   Mazibuko was also inconsistent as to his reasons for

traveling to the United States.    Despite his request for

asylum, Mazibuko testified that he came to the United States

in 2009 to visit his daughter, not to flee persecution.

    Finally, Mazibuko failed to submit corroborating evidence

sufficient to support his claim.    He provided no documentary

evidence of his party affiliation or his work in the

                               4
organization supporting immigrants to South Africa, medical

records of his injuries, or statements from family or friends

to confirm his account of persecution.

    Given Mazibuko’s non-responsive, inconsistent testimony

and his lack of corroborating evidence, substantial evidence

supports the agency’s adverse credibility determination, which

provided an adequate basis for denying Mazibuko asylum,

withholding of removal, and CAT relief.    See 8 U.S.C.

§ 1158(b)(1)(B); Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.

2006).

    For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, the pending motion

for a stay of removal in this petition is DENIED as moot.

                             FOR THE COURT:
                             Catherine O’Hagan Wolfe, Clerk




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