     16-4190
     Ba v. Sessions
                                                                                   BIA
                                                                              Cheng, IJ
                                                                           A201 122 222

                           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
 2   for the Second Circuit, held at the Thurgood Marshall United
 3   States Courthouse, 40 Foley Square, in the City of New York,
 4   on the 23rd day of April, two thousand eighteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            PETER W. HALL,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   OUMAR SAMBA BA,
14            Petitioner,
15
16                    v.                                         16-4190
17                                                               NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Diana L. Castaneda, New York, NY.
24
25   FOR RESPONDENT:                  Chad A. Readler, Acting Assistant
26                                    Attorney General; John S. Hogan,
27                                    Assistant Director; Robbin K.
28                                    Blaya, Trial Attorney, Office of
29                                    Immigration Litigation, United
30                                    States Department of Justice,
31                                    Washington, DC.
1        UPON DUE CONSIDERATION of this petition for review of a

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

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

4    is DENIED.

5        Petitioner Oumar Samba Ba, a native and citizen of

6    Mauritania, seeks review of a November 18, 2016, decision

7    of the BIA affirming a September 24, 2015, decision of an

8    Immigration Judge (“IJ”) denying Ba’s application for

9    asylum, withholding of removal, and relief under the

10   Convention Against Torture (“CAT”).   In re Oumar Samba Ba,

11   No. A 201 122 222 (B.I.A. Nov. 18, 2016), aff’g No. A 201

12   122 222 (Immig. Ct. N.Y. City Sept. 24, 2015).    We assume

13   the parties’ familiarity with the underlying facts and

14   procedural history in this case.

15       Under the circumstances of this case, we have reviewed

16   both the BIA’s and IJ’s decisions.      See Yun-Zui Guan v.

17   Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).      The standards

18   of review are well established.    See 8 U.S.C. § 1252(b)(4);

19   Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165 (2d Cir. 2008).

20       The agency may, “[c]onsidering the totality of the

21   circumstances,” base a credibility finding on “the

22   consistency between the applicant’s or witness’s written

23   and oral statements . . ., the internal consistency of each
                                   2
1    such statement, the consistency of such statements with

2    other evidence of record . . ., and any inaccuracies or

3    falsehoods in such statements, without regard to whether an

4    inconsistency, inaccuracy, or falsehood goes to the heart

5    of the applicant’s claim.”   8 U.S.C. § 1158(b)(1)(B)(iii);

6    Xiu Xia Lin, 534 F.3d at 163-64.   “We defer . . . to an

7    IJ’s credibility determination unless . . . it is plain

8    that no reasonable fact-finder could make such an adverse

9    credibility ruling.”   Xiu Xia Lin, 534 F.3d at 167.

10   Substantial evidence supports the agency’s determination

11   that Ba was not credible.

12       As set forth below, the adverse credibility

13   determination is supported by significant inconsistencies

14   between Ba’s testimony on the one hand and his written

15   statement and documentary evidence on the other.    See 8

16   U.S.C. § 1158(b)(1)(B)(iii).   Ba testified, for example,

17   that the Mauritanian government confiscated his farmland

18   without compensation and assigned it to non-black

19   Mauritanians.   But he omitted the confiscation of his own

20   personal land from his written statement, and the letters

21   from his brother, wife, and friend similarly contain no

22   reference to seizure of Ba’s (or their) own land.   The IJ

23   reasonably concluded that the omissions from Ba’s written
                                   3
1    statement and his brother’s letter were significant because

2    Ba allegedly suffered a valuable loss to his livelihood as

3    the victim of the same racist and discriminatory practices

4    he publicly protested, and Ba’s brother co-owned the land.

5    See Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289,

6    295 (2d Cir. 2006) (holding that material inconsistency

7    relating to central aspect of asylum claim provided

8    substantial evidence for adverse credibility

9    determination); see also Xiu Xia Lin, 534 F.3d at 166 n.3

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

11   equivalent” for credibility purposes.); Ming Zhang v.

12   Holder, 585 F.3d 715, 726 (2d Cir. 2009) (“Omissions that

13   go to a heart of an applicant’s claim can form the basis

14   for an adverse credibility determination.” (citation and

15   quotation marks omitted)).   The agency was not compelled to

16   accept the explanation that the Mauritanian government

17   confiscated all the land occupied by the black population

18   in Ba’s village and reasonably expected that Ba’s

19   application would have mentioned the seizure of his own

20   land.   See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.

21   2005) (“A petitioner must do more than offer a plausible

22   explanation for his inconsistent statements to secure

23   relief; he must demonstrate that a reasonable fact-finder
                                   4
1    would be compelled to credit his testimony.” (internal

2    quotation marks and citation omitted)).

3        Additional inconsistencies regarding whether Ba sought

4    medical treatment following each of the alleged attacks

5    bolster the adverse credibility determination.   8 U.S.C.

6    § 1158(b)(1)(B)(iii); see Xiu Xia Lin, 534 F.3d at 167.

7    For example, Ba testified that he sought treatment in a

8    clinic after each of the three attacks, but neither his

9    written statement nor his family’s letters included any

10   reference to any medical treatment.   Ming Zhang, 585 F.3d

11   at 726.   The agency reasonably found the omission

12   significant as it relates to the level of harm Ba allegedly

13   suffered.   See Xian Tuan Ye, 446 F.3d at 295.   Although Ba

14   suggests that the IJ required him to answer complex

15   questions about his medical treatment despite his lack of

16   education, the IJ cited the lack of any reference to

17   medical treatment in Ba’s documentary evidence rather than

18   Ba’s lack of detailed medical knowledge.

19       Finally, the agency reasonably relied on Ba’s

20   inconsistent testimony regarding the submission of false

21   documentation to the consulate in support of his visa

22   application.   Although the agency generally may not rely on

23   false statements made to escape persecution to find an
                                   5
1    applicant not credible, the agency did not do so here.

2    Instead, the IJ relied mainly on the fact that Ba was

3    inconsistent at his hearing as to what false information he

4    had presented to obtain a visa to travel to the United

5    States and reasonably noted that Ba had been unharmed in

6    Mauritania for a couple of years before seeking a visa.

7    Cf. Rui Ying Lin v. Gonzales, 445 F.3d 127, 133 (2d Cir.

8    2006) (instructing that fraudulent document cannot form

9    basis of adverse credibility determination if such document

10   was used to escape “immediate danger or imminent

11   persecution”); Edimo-Doualla v. Gonzales, 464 F.3d 276, 288

12   (2d Cir. 2006) (same).   We defer to the agency “[w]here

13   there are two permissible views of the evidence.”     Siewe v.

14   Gonzales, 480 F.3d 160, 167 (2d Cir. 2007).

15       Substantial evidence supports the agency’s adverse

16   credibility determination given the centrality of Ba’s

17   omission regarding the confiscation of his own land, as

18   well as the more minor omissions and inconsistencies

19   relating to medical treatment and what false information he

20   presented to the U.S. consulate.   See 8 U.S.C.

21   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.     The

22   adverse credibility determination is dispositive of asylum,

23   withholding of removal, and CAT relief because all three
                                   6
1    claims rely on Ba’s credibility.    See Paul v. Gonzales, 444

2    F.3d 148, 156-57 (2d Cir. 2006).

3        For the foregoing reasons, the petition for review is

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

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

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

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

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

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

10   34.1(b).

11                       FOR THE COURT:
12                       Catherine O’Hagan Wolfe, Clerk of Court
13




                                    7
