11-3736-ag                                                                      BIA
Ely Tem v. Holder                                                        LaForest, IJ
                                                                        A087 445 673



                     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.

     At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 20th day of June, two thousand twelve.

PRESENT:
         DENNIS JACOBS,
              Chief Judge,
         PIERRE N. LEVAL,
         GERARD E. LYNCH,
              Circuit Judges.
_____________________________________

MOHAMED ALY BABA ELY TEM,
         Petitioner,

                    v.                                  11-3736-ag
                                                        NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
         Respondent.
_____________________________________

FOR PETITIONER:                H. Raymond Fasano, New York, NY.

FOR RESPONDENT:                Stuart F. Delery, Acting Assistant
                               Attorney General; Francis W. Fraser,
                               Senior Litigation Counsel; Linda Y.
                               Cheng, Trial Attorney, Office of
                               Immigration Litigation, United
                               States Department of Justice,
                               Washington, DC.
    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.

    Mohamed Aly Baba Ely Tem, a native and citizen of

Mauritania, seeks review of a September 2, 2011, decision of

the BIA affirming the July 7, 2010, decision of Immigration

Judge (“IJ”) Brigitte Laforest, which denied his application

for asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”).       In re Mohamed Aly Baba

Ely Tem, No. A087 445 673 (B.I.A. Sept. 2, 2011), aff’g No.

A087 445 673 (Immig. Ct. N.Y. City July 7, 2010).       We assume

the parties’ familiarity with the underlying facts and

procedural history in this case.

    Under the circumstances of this case, we have reviewed

the IJ’s decision, “including the portions not explicitly

discussed by the BIA.”   See Yun-Zui Guan v. Gonzales, 432

F.3d 391, 394 (2d Cir. 2005).       We review the agency’s

adverse credibility determination under the substantial

evidence standard, treating it as “conclusive unless any

reasonable adjudicator would be compelled to conclude to the

contrary.”   See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin

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

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    For asylum applications such as Ely Tem’s, governed by

the amendments made to the Immigration and Nationality Act

by the REAL ID Act of 2005, the agency may, considering the

totality of the circumstances, base a credibility finding on

inconsistencies or omissions in the applicant’s statements,

without regard to whether the inconsistencies or omissions

go “to the heart of the applicant’s claim.”   See 8 U.S.C.

§ 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

167 (2d Cir. 2008).

    Ely Tem challenges the agency’s adverse credibility

determination as a whole.   However, in appealing the IJ’s

decision to the BIA, Ely Tem addressed only one of the IJ’s

bases for finding him not credible – the inconsistency

regarding the date of his arrest.   He did not specifically

dispute the other inconsistencies identified by the IJ,

including inconsistencies between his testimony and the

personal statement included with his asylum application

concerning other details of his arrest (whether police beat

him upon his arrival at the police station, whether he was

conscious at the time, and what occurred at the police

station after his arrest); inconsistencies between his

testimony and his asylum application concerning his place of


                              3
residence from August to October 2008 and his activities

during that period; inconsistencies between his testimony

and evidence submitted in support of his asylum application

regarding which of his family members had been questioned by

Mauritanian authorities about his present whereabouts; and

inconsistencies between his testimony and the affidavit he

submitted describing how he obtained his Mauritanian

passport.

    In his appeal to the BIA, instead of specifically

contesting these adverse credibility findings, Ely Tem

conclusorily asserted that the IJ “denied the case based on

misunderstanding or incorrect assumptions” and that “[a]

review of the record demonstrates that the appellant was

responsive and detailed with respect to the questions asked

of him.”    In his petition to this Court, Ely Tem makes

similarly conclusory arguments.

    Even assuming that Ely Tem’s challenge to the agency’s

adverse credibility determination is properly preserved for

our review, see Karaj v. Gonzales, 462 F.3d 113, 119 & n.2

(2d Cir. 2006), his challenge fails on the merits.

Substantial evidence supports the agency’s adverse

credibility determination, based on the above-mentioned


                               4
inconsistencies between and among Ely Tem’s testimony and

his asylum application, the personal statement included with

his application, and the evidence submitted in support of

his application.

    Ely Tem’s challenges to the BIA’s opinion are

unavailing.     Ely Tem argues that “the Board did not apply

any test, standard or scrutiny with respect to [his] appeal

of the IJ’s denial of his asylum claim.”     The BIA’s

decision, however, explicitly stated and correctly applied

the appropriate standard of review.     See 8 C.F.R. §

1003.1(d)(3)(i) (providing that factual findings, including

credibility determinations, are reviewed by the BIA for

clear error).

    Next, Ely Tem claims that the agency “mischaracterized

the record,” because the IJ and the BIA described his

testimony as “inconsistent,” whereas he claims that “he

answered every question in a detailed and responsive

manner.”   However, the BIA’s decision addressed the many

inconsistencies noted by the IJ, including several

inconsistencies not addressed by Ely Tem on appeal, and

reasonably concluded that the IJ’s adverse credibility

determination was not clearly erroneous.     See Xiu Xia Lin,

534 F.3d at 167 (finding that the agency “may rely on any
                                5
inconsistency or omission in making an adverse credibility

determination” as long as the totality of the circumstances

establishes the applicant is incredible (internal quotation

marks omitted)).     Accordingly, Ely Tem’s suggestion that the

BIA failed to “carefully” or “thorough[ly]” consider the

record is without merit.

    Finally, Ely Tem characterizes the inconsistencies

noted by the agency as “a minor misunderstanding, all of

which were cleared up with consistent and reasonable

explanations.”     But his proffered explanations are non-

compelling, concern only some of the inconsistencies

identified by the agency, and fail to establish that “no

reasonable fact-finder could make such an adverse

credibility ruling.”     See id.; see also 8 U.S.C.

§ 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430 F.3d 77, 80-81

(2d Cir. 2005).

    Because the totality of the circumstances supports the

agency’s adverse credibility determination, we defer to that

finding.   See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,

534 F.3d at 167.     As the only evidence of a threat to Ely

Tem’s life or freedom depended upon his credibility, the

adverse credibility determination in this case necessarily

precludes success on his claims for asylum, withholding of

                                6
removal, and CAT relief.   See Paul v. Gonzales, 444 F.3d

148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of

Justice, 426 F.3d 520, 523 (2d Cir. 2005).

    For the foregoing reasons, the petition for review is

DENIED.

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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