         12-708
         Barry v. Holder
                                                                                        BIA
                                                                                Vomacka, IJ
                                                                               A089 266 877
                            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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 16th day of July, two thousand thirteen.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                PIERRE N. LEVAL,
 9                JOSÉ A. CABRANES,
10                     Circuit Judges.
11       _____________________________________
12
13       MOUSSA BARRY,
14                Petitioner,
15
16                         v.                                   12-708
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Bibiana C. Andrade, New York, NY.
24
25       FOR RESPONDENT:               Stuart F. Delery, Principal Deputy
26                                     Assistant Attorney General; Paul
27                                     Fiorino, Senior Litigation Counsel;
28                                     Judith R. O’Sullivan, Trial
29                                     Attorney, Office of Immigration
30                                     Litigation, United States Department
31                                     of Justice, 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.

 5       Moussa Barry, a native and citizen of Burkina Faso,

 6   seeks review of a January 26, 2012, decision of the BIA

 7   affirming the July 29, 2010, decision of Immigration Judge

 8   (“IJ”) Alan A. Vomacka, which denied his applications for

 9   asylum, withholding of removal, and relief under the

10   Convention Against Torture (“CAT”).     In re Moussa Barry, No.

11   A089 266 877 (B.I.A. Jan. 26, 2012), aff’g No. A089 266 877

12   (Immig. Ct. N.Y. City July 29, 2010).    We assume the

13   parties’ familiarity with the underlying facts and

14   procedural history in this case.

15       Under the circumstances of this case, we have reviewed

16   the IJ’s decision as modified by the BIA decision.       See Xue

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

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

19   established.    See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

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

21       For applications such as Barry’s, governed by the

22   amendments made to the Immigration and Nationality Act by

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

                                    2
 1   totality of the circumstances, base a credibility

 2   determination on “the consistency of [the applicant’s]

 3   statements with other evidence of record [], without regard

 4   to whether an inconsistency, inaccuracy, or falsehood goes

 5   the heart of the applicant’s claim.”   8 U.S.C.

 6   § 1158(b)(1)(B)(iii); see also Xiu Xia Lin v. Mukasey, 534

 7   F.3d 162, 167 (2d Cir. 2008) (per curiam).

 8       The agency found that Barry was incredible, in part,

 9   because his testimony about the number of attackers in an

10   alleged incident differed from his asylum application.

11   Barry does not dispute the inconsistency, but contends that

12   “his responses” were affected by interpretation problems

13   during the hearing, including the IJ’s inappropriate

14   interjection of his personal knowledge of the French

15   language.   However, because the government correctly asserts

16   that Barry failed to exhaust these arguments before the

17   agency, we do not consider them.   See Lin Zhong v. U.S.

18   Dep’t of Justice, 480 F.3d 104, 118-20 (2d Cir. 2007).

19       Barry also contends that the agency erred by ignoring

20   some of his corroboration and failing to inquire about

21   missing evidence.   However, the agency permissibly required

22   additional rehabilitative corroboration, without enumerating


                                   3
 1   each piece of evidence, because it had reasonably called his

 2   testimony into question.     See Biao Yang v. Gonzales, 496

 3   F.3d 268, 273 (2d Cir. 2007) (per curiam); Xiao Ji Chen v.

 4   U.S. Dep’t of Justice, 471 F.3d 315, 341-42 (2d Cir. 2006).

 5       Accordingly, we defer to the agency’s adverse

 6   credibility determination.     Xiu Xia Lin, 534 F.3d at 167.

 7   As the only evidence of a threat to Barry’s life or freedom

 8   depended on his credibility, the adverse credibility

 9   determination in this case is dispositive of his claims for

10   asylum, withholding of removal, and CAT relief.     See Paul v.

11   Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006); Xue Hong Yang

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

13       Finally, Barry contends that remand is required because

14   of the ineffective assistance of his attorney before the

15   agency.   This argument is also unexhausted.    Ling Zhong, 480

16   F.3d at 119.   If his prior attorney was ineffective in his

17   representation of Barry before the IJ, a proposition for

18   which we express no opinion, Barry’s remedy is to move the

19   BIA for reopening based on a claim of ineffective assistance

20   of counsel.    See, e.g., Twum v. INS, 411 F.3d 54, 59 (2d

21   Cir. 2005).

22



                                     4
1        For the foregoing reasons, the petition for review is

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

3    removal that the Court previously granted in this petition

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

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

6    oral argument in this petition is DENIED in accordance with

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

8    Circuit Local Rule 34.1(b).

 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe, Clerk




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