         09-3041-ag
         Tunkara v. Holder
                                                                                        BIA
                                                                                  Brennan, IJ
                                                                               A 098 149 071
                              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 21 st day of July, two thousand ten.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                REENA RAGGI,
 9                RICHARD C. WESLEY,
10                      Circuit Judges.
11       _______________________________________
12
13       DAGUMIE TUNKARA,
14                Petitioner,
15
16                           v.                                 09-3041-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., U.S. ATTORNEY
19       GENERAL, ET AL.,
20                Respondents.
21       ______________________________________
22
23       FOR PETITIONER:               Brian I. Kaplan, New York, New York.
24
25       FOR RESPONDENTS:              Tony West, Assistant Attorney
26                                     General; Emily Anne Radford,
27                                     Assistant Director; Aviva L.
28                                     Poczter, Senior Litigation Counsel,
29                                     Office of Immigration Litigation,
30                                     Washington, D.C.
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 in part and DISMISSED in part.

5        Petitioner Dagumie Tunkara, a native and citizen of

6    Sierra Leone, seeks review of the June 17, 2009, order of

7    the BIA affirming the September 20, 2007, decision of

8    Immigration Judge (“IJ”) Noel Brennan pretermitting his

9    application for asylum, and denying his application for

10   withholding of removal and CAT relief.       In re Dagumie

11   Tunkara, No. A 098 149 071 (B.I.A. June 17, 2009), aff’g No.

12   A 098 149 071 (Immig. Ct. N.Y. City Sept. 20, 2007).         We

13   assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15       Under the circumstances of this case, we review both

16   the IJ’s and the BIA’s decisions.       See Zaman v. Mukasey, 514

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

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

19   Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

20       Under 8 U.S.C. § 1158(a)(3), no court shall have

21   jurisdiction to review the agency’s finding that an asylum

22   application was untimely under 8 U.S.C. § 1158(a)(2)(B), or


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1    its finding of neither changed nor extraordinary

2    circumstances excusing the untimeliness under 8 U.S.C.

3    § 1158(a)(2)(D).    Notwithstanding that provision, however,

4    we retain jurisdiction to review constitutional claims and

5    “questions of law.”    8 U.S.C. § 1252(a)(2)(D).   Here,

6    however, Tunkara merely challenges the IJ’s factual finding

7    regarding his date of arrival in the United States.        Thus,

8    we are without jurisdiction to consider the IJ’s

9    pretermission of his asylum application and dismiss the

10   petition for review to that extent.

11       With respect to Tunkara’s application for withholding

12   of removal, we find that substantial evidence supports the

13   IJ’s adverse credibility determination.    Tunkara does not

14   challenge the IJ’s findings that: (1) his vague and evasive

15   demeanor during his hearing undermined his credibility; (2)

16   his testimony that he secured his departure on a ship

17   leaving Sierra Leone solely by begging and without payment

18   was inconsistent with his written statement that he paid a

19   person to board the ship; and (3) his testimony that he

20   received civilian clothes when leaving the ship was

21   inconsistent with his written statement that he received a

22   cook’s uniform.    Accordingly, those findings stand as valid



                                    3
1    bases for the IJ’s adverse credibility determination.     See

2    Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008).

3        Tunkara argues that his inconsistent statements

4    regarding the manner in which his mother was killed were

5    “ancillary” to his application for relief.     To the contrary,

6    that discrepancy went to the heart of his claim that he was

7    detained and mistreated, and that his father and mother were

8    murdered because of their ethnic background and perceived

9    political opinion.   See Secaida-Rosales v. INS, 331 F.3d

10   297, 307 (2d Cir. 2003).   The IJ also did not err in basing

11   her adverse credibility determination, in part, on Tunkara’s

12   inconsistent statements regarding how and when he received

13   his passport.   Even if those inconsistencies were more

14   minor, the IJ was entitled to consider them cumulatively

15   with the other discrepancies she identified.     See Tu Lin v.

16   Gonzales, 446 F.3d 395, 402 (2d Cir. 2006) (emphasizing that

17   “even where an IJ relies on discrepancies or lacunae that,

18   if taken separately, concern matters collateral or ancillary

19   to the claim, ... the cumulative effect may nevertheless be

20   deemed consequential by the fact-finder”) (internal

21   quotation omitted); see also Liang Chen v. U.S. Att'y Gen.,

22   454 F.3d 103, 106-07 (2d Cir. 2006) (“[A]n IJ need not



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1    consider the centrality vel non of each individual

2    discrepancy or omission” and can instead “rely upon the

3    cumulative impact of such inconsistencies, and may conduct

4    an overall evaluation of testimony in light of its

5    rationality or internal consistency and the manner in which

6    it hangs together with other evidence.”) (internal

7    quotations and citations omitted). Finally, the IJ did not

8    err in finding that Tunkara failed to adequately corroborate

9    his otherwise incredible claim.     See Xiao Ji Chen v. U.S.

10   Dep’t of Justice, 471 F.3d 315, 341 (2d Cir. 2006) (holding

11   that an applicant’s failure to corroborate his testimony may

12   bear on credibility when the absence of corroboration in

13   general makes the applicant unable to rehabilitate testimony

14   that has already been called into question).

15       Because Tunkara’s claims for withholding of removal and

16   CAT relief were based on the same factual predicate, the

17   IJ’s adverse credibility determination undermined both

18   claims.   See Xue Hong Yang v. U.S. Dep’t of Justice, 426

19   F.3d 520, 523 (2d Cir. 2005).

20       For the foregoing reasons, the petition for review is

21   DENIED in part and DISMISSED in part.     As we have completed

22   our review, any stay of removal that the Court previously



                                     5
1   granted in this petition is VACATED, and any pending motion

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

3   Any pending request for oral argument in this petition is

4   DENIED in accordance with Federal Rule of Appellate

5   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

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




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