     14-3825
     Saleh v. Lynch
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A201 139 894
                           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   20th day of January, two thousand sixteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            PIERRE N. LEVAL,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   EL HAFED MOHAMED LEMINE MOHAMED
14   SALEH, AKA MOHAMED ELHAFED, AKA
15   ELHAFEDMEDLEMIN MOHAMEDSALEH,
16            Petitioner,
17
18                    v.                                             14-3825
19                                                                   NAC
20   LORETTA E. LYNCH, UNITED STATES
21   ATTORNEY GENERAL,
22            Respondent.
23   _____________________________________
24
25   FOR PETITIONER:                     Bibiana C. Andrade, New York, New
26                                       York.
27
28   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
29                                       Attorney General, Civil Division;
 1                                Song Park, Senior Litigation
 2                                Counsel; Jessica E. Burns, Trial
 3                                Attorney, Office of Immigration
 4                                Litigation, United States
 5                                Department of Justice, Washington,
 6                                D.C.
 7
 8       UPON DUE CONSIDERATION of this petition for review of a

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

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

11   DENIED.

12       Petitioner El Hafed Mohamed Lemine Mohamed Saleh, a native

13   and citizen of Mauritania, seeks review of a September 11, 2014,

14   decision of the BIA affirming a March 21, 2013, decision of an

15   Immigration   Judge (“IJ”)    denying Saleh’s   application   for

16   asylum, withholding of removal, and relief under the Convention

17   Against Torture (“CAT”).   In re El Hafed Mohamed Lemine Mohamed

18   Saleh, No. A201 139 894 (B.I.A. Sept. 11, 2014), aff’g No. A201

19   139 894 (Immig. Ct. N.Y. City Mar. 21, 2013).     We assume the

20   parties’ familiarity with the underlying facts and procedural

21   history in this case.

22       Under the circumstances of this case, we have reviewed both

23   the IJ’s and the BIA’s opinions “for the sake of completeness.”

24   Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008).           The

                                     2
 1   applicable standards of review are well established.            See

 2   8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534

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

 4       For asylum applications, like Saleh’s, governed by the REAL

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

 6   circumstances,” base a credibility finding on inconsistencies

 7   and omissions in an applicant’s statements and other record

 8   evidence “without regard to whether” they go “to the heart of

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

10   Xia Lin, 534 F.3d at 163-64, 167.     Omissions are “functionally

11   equivalent” to inconsistencies, and “can serve as a proper basis

12   for an adverse credibility determination.”        Xiu Xia Lin, 534

13   F.3d at 166 n.3.   Substantial evidence supports the agency’s

14   determination that Saleh was not credible.

15       The   IJ   considered   the   inconsistency   between   Saleh’s

16   testimony that his second arrest occurred on August 27, 2010,

17   and his application, which stated this arrest occurred on July

18   27, 2010.      When confronted with this discrepancy, Saleh

19   initially responded that he was arrested in August, but then

20   that he was arrested in July and came to the United States in

21   August.   As Saleh did not actually explain this discrepancy,
                                       3
 1   a reasonable fact-finder would not be compelled to credit his

 2   explanation.       Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.

 3   2005).

 4       A     second     inconsistency        involved    Saleh’s    testimony

 5   regarding why he was targeted by the Mauritanian government.

 6   He first stated that he was “targeted by the government” because

 7   his “family used to own a slave” and he went “against . . . [his]

 8   family,” but then stated that his tribe might target him.

 9   Despite additional questioning, it remains unclear who might

10   target Saleh: the government or his tribe.                 The record thus

11   supports the IJ’s finding that Saleh provided “different

12   versions” of who might target him.

13       The    IJ   also    cited   two       omissions   in   Saleh’s   asylum

14   application: that he was electrocuted by police after his second

15   arrest, and that police abuse caused him persisting ear pain.

16   Saleh stated he omitted this information because he was told

17   that he would have an opportunity to testify and elaborate on

18   his claims.     However, these omissions are significant; the

19   mistreatment by police after his second arrest was the only harm

20   he suffered in Mauritania.       The type of harm and the extent of

21   his injuries are therefore substantial omissions that were
                                           4
 1   properly considered.        Secaida-Rosales v. INS, 331 F.3d 297, 308

 2   (2d Cir. 2003), abrogated in part by Xiu Xia Lin v. Mukasey,

 3   534 F.3d 162 (2d Cir. 2008); cf. Pavlova v. INS, 441 F.3d 82,

 4   90 (2d Cir. 2006).

 5         A third omission cited by the IJ is that Saleh’s application

 6   failed to include “information about being the target of the

 7   police for his anti-slavery activities.”         This finding is weak:

 8   Saleh described his anti-slavery activities and mentioned that

 9   he was questioned about them.        However, he did not demonstrate

10   that he was targeted or persecuted for that activity.               Even

11   disregarding this finding, the “totality of the circumstances”

12   supports    the   adverse    credibility determination       given the

13   inconsistencies regarding the date of Saleh’s second arrest,

14   the   reason    he was targeted, and       the   omissions   from    his

15   application about the type and severity of harm by police.           Xiu

16   Xia Lin, 534 F.3d at 167.

17         The   agency    properly      considered    Saleh’s    lack    of

18   corroborating evidence.        See Biao Yang v. Gonzales, 496 F.3d

19   268, 273 (2d Cir. 2007).        The IJ acted within his discretion

20   not to admit into evidence the untimely-submitted newspaper

21   article.       8 C.F.R. § 1003.31(c).       In addition, as Saleh
                                         5
 1   testified that a U.S. doctor examined his injured ear, the

 2   agency   reasonably   considered       the   absence   of   any   medical

 3   documentation to corroborate Saleh’s testimony.             Yan Juan Chen

 4   v. Holder, 658 F.3d 246, 252-53 (2d Cir. 2011).        Saleh submitted

 5   a letter from the president of an anti-slavery organization and

 6   a statement by his wife.    The agency could give little weight

 7   to these documents because the author of the letter was not

 8   available for cross-examination and Saleh’s wife did not

 9   indicate she had personal knowledge of the events she discussed.

10   Cf. Kulhawik v. Holder, 571 F.3d 296, 298 (2d Cir. 2009)

11   (personal knowledge); In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec.

12   209, 215 (B.I.A. 2010) (availability for cross-examination),

13   rev’d on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130

14   (2d Cir. 2012).   Finally, the IJ properly considered a 2010 U.S.

15   Department of State report, which stated that the Mauritanian

16   government was involved in programs to eradicate the effects

17   of slavery and restore rights to former slaves.             Xiao Ji Chen

18   v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006).           As

19   the agency determined, this report undercut Saleh’s claim.

20       In light of the inconsistencies, omissions, and lack of

21   corroboration, the “totality of the circumstances” supports the
                                        6
 1   IJ’s adverse credibility determination.          Xiu Xia Lin, 534 F.3d

 2   at   167.     This   finding   was       sufficient   to   deny   asylum,

 3   withholding of removal, and CAT relief, as all three forms of

 4   relief relied on the same factual predicate.                See Paul v.

 5   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v.

 6   U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).

 7        For the foregoing reasons, the petition for review is

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

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

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

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

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

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

14   34.1(b).

15                                   FOR THE COURT:
16                                   Catherine O=Hagan Wolfe, Clerk




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