         09-4979-ag
         Diakite v. U.S. DOJ
                                                                                        BIA
                                                                                   Sichel, IJ
                                                                               A097 852 249
                                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 4th day of June, two thousand twelve.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                ROBERT D. SACK,
10                REENA RAGGI,
11                     Circuit Judges.
12       _________________________________________
13
14       BAKARI DIAKITE,
15                Petitioner,
16
17                             v.                               09-4979-ag
18                                                              NAC
19       UNITED STATES DEPARTMENT OF JUSTICE,
20       BOARD OF IMMIGRATION APPEALS,
21                Respondents.
22       _______________________________________
23
24       FOR PETITIONER:                 Brian I. Kaplan, Goldberg & Kaplan,
25                                       LLP, New York, NY.
26
27       FOR RESPONDENTS:                Loretta E. Lynch, United States
28                                       Attorney; Varuni Nelson; Scott Dunn;
29                                       Margaret M. Kolbe, Assistant United
 1                           States Attorneys; Dione M. Enea,
 2                           Special Assistant United States
 3                           Attorney, Of Counsel, Eastern
 4                           District of New York, Brooklyn, NY.
 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

 9   is DENIED.

10       Bakari Diakite, a native and citizen of the Democratic

11   Republic of the Congo (“DRC”), seeks review of a November 3,

12   2009, order of the BIA affirming the March 18, 2008,

13   decision of Immigration Judge (“IJ”) Helen J. Sichel, which

14   denied his application for asylum, withholding of removal,

15   and relief under the Convention Against Torture (“CAT”).        In

16   re Diakite, No. A097 852 249 (B.I.A. Nov. 3, 2009), aff’g

17   No. A097 852 249 (Immig. Ct. N.Y. City Mar. 18, 2008).     We

18   assume the parties’ familiarity with the underlying facts

19   and procedural history in this case.

20       Under the circumstances of this case, we have reviewed

21   the IJ’s decision as modified by the BIA decision, and

22   address only the adverse credibility determination.    See Xue

23   Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d

24   Cir. 2005).   The applicable standards of review are well-


                                   2
 1   established.    See Salimatou Bah v. Mukasey, 529 F.3d 99, 110

 2   (2d Cir. 2008); Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d

 3   Cir. 2007).

 4       To form the basis of an adverse credibility

 5   determination, a discrepancy must be “substantial” when

 6   measured against the record as a whole.    See Latifi v.

 7   Gonzales, 430 F.3d 103, 105 (2d Cir. 2005).   At the same

 8   time, however, “even where an IJ relies on discrepancies or

 9   lacunae that, if taken separately, concern matters

10   collateral or ancillary to the claim, . . . the cumulative

11   effect may nevertheless be deemed consequential by the

12   fact-finder.” Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir.

13   2006) (internal citations omitted).   The agency’s adverse

14   credibility finding in this case was based on an

15   accumulation of factors, including the inconsistency in

16   Diakite’s testimony as to when his family store was robbed

17   and destroyed, inconsistencies among his testimony, asylum

18   application and corroborating evidence as to when he entered

19   the United States, and a discrepancy between his testimony

20   and his corroborating evidence as to the date of, and events

21   during, the incident which precipitated Diakite’s departure

22   from the DRC.

                                    3
 1       These inconsistencies were substantial when measured

 2   against the record as a whole, and IJ provided specific and

 3   cogent reasons for relying upon them in finding Diakite not

 4   credible.     The agency therefore did not err in concluding

 5   that Diakite was not credible.      See Majidi v. Gonzales, 430

 6   F.3d 77, 79-80 (2d Cir. 2005); Secaida-Rosales v. INS, 331

 7   F.3d 297, 308-09 (2d Cir. 2003).*     The adverse credibility

 8   determination precludes success on the claims for asylum,

 9   withholding of removal, and CAT relief,     because the only

10   evidence of a threat to Diakite’s life or freedom, or that

11   he was likely to be tortured, depended upon his credibility.

12   See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue

13   Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d

14   Cir. 2005).

15       For the foregoing reasons, the petition for review is

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

17   removal that this Court previously granted in this petition

18   is VACATED, and any pending motion for a stay of removal in

19   this petition is DISMISSED as moot.     Any pending request for


            *
             Because Diakite    applied for asylum prior to the
       enactment of the Real    ID Act, Secaida-Rosales is
       applicable. See Dong     Zhong Zheng v. Mukasey, 552 F.3d
       277, 287 n.6 (2d Cir.    2009).
                                     4
1   oral argument in this petition is DENIED in accordance with

2   Federal Rule of Appellate Procedure 34(a)(2), and Second

3   Circuit Local Rule 34.1(b).

4                                 FOR THE COURT:
5                                 Catherine O’Hagan Wolfe, Clerk
6
7




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