     15-3980
     Balde v. Sessions
                                                                                         BIA
                                                                               Christensen, IJ
                                                                               A200 819 193

                              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   16th day of June, two thousand seventeen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            GERARD E. LYNCH,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   MAMADOU-SOTO BALDE,
14            Petitioner,
15
16                       v.                                          15-3980
17                                                                   NAC
18   JEFFERSON B. SESSIONS III, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Andy Wong, Washington, D.C.
24
25   FOR RESPONDENT:                    Benjamin C. Mizer, Principal Deputy
26                                      Assistant Attorney General; Stephen
27                                      J. Flynn, Assistant Director; Imran

      The Clerk of Court is respectfully directed to amend the
     official caption to conform to the above.
1                                R. Zaidi, Attorney; Tiffany L.
2                                Donohue, Law Clerk, Office of
3                                Immigration Litigation, United
4                                States Department of Justice,
5                                Washington, D.C.
6
7          UPON DUE CONSIDERATION of this petition for review of a Board

8    of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,

9    ADJUDGED, AND DECREED that the petition for review is DENIED.

10         Petitioner Mamadou-Soto Balde, a native and citizen of

11   Guinea, seeks review of a December 2, 2015 decision of the BIA

12   affirming a July 31, 2014 decision of an Immigration Judge (“IJ”)

13   denying Balde’s application for asylum, withholding of removal,

14   and relief under the Convention Against Torture (“CAT”). In re

15   Mamadou-Soto, No. A200 819 193 (B.I.A. Dec. 2, 2015), aff’g No.

16   A200 819 193 (Immig. Ct. N.Y. City July 31, 2014). We assume

17   the   parties’   familiarity   with   the   underlying   facts   and

18   procedural history in this case.

19         Under the circumstances of this case, we have reviewed the

20   IJ’s decision as modified by the BIA (i.e., considering only

21   those grounds for the credibility determination that the BIA

22   reached). See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

23   520, 522 (2d Cir. 2005). The applicable standards of review are

24   well established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.

25   Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).



                                      2
1        The governing REAL ID Act credibility standard provides that

2    the agency must “[c]onsider[] the totality of the

3    circumstances,” and may base a credibility finding on an

4    applicant’s “demeanor, candor, or responsiveness,” the

5    plausibility of his account, and inconsistencies in his or his

6    witness’s statements, “without regard to whether” they go “to

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

8    § 1158(b)(1)(B)(iii); see Xiu Xia Lin, 534 F.3d at 163-64. “We

9    defer . . . to an IJ’s credibility determination unless, from

10   the totality of the circumstances, it is plain that no reasonable

11   fact-finder could make such an adverse credibility ruling.” Xiu

12   Xia Lin, 534 F.3d at 167. Further, “[a] petitioner must do more

13   than offer a plausible explanation for his inconsistent

14   statements to secure relief; he must demonstrate that a

15   reasonable fact-finder would be compelled to credit his

16   testimony.” Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005)

17   (internal quotations marks omitted). As discussed below,

18   substantial evidence supports the agency’s determination that

19   Balde was not credible.

20       First, the agency did not err by relying on Balde’s credible

21   fear interview record.     We have held that a credible fear

22   interview warrants “close examination” because it may “be

23   perceived as coercive” by the alien or fail to “elicit all of
                                     3
1    the details supporting an asylum claim.” Ming Zhang v. Holder,

2    585 F.3d 715, 724-25 (2d Cir. 2009). But “[w]here the record

3    of   a   credible    fear   interview   displays    the   hallmarks   of

4    reliability, it appropriately can be considered in assessing

5    an alien’s credibility.”          Id. at 725.      The interview here

6    exhibited    many    of   the   hallmarks   of   reliability   we   have

7    identified. See id. (citing Ramsameachire v. Ashcroft, 357 F.3d

8    169, 180 (2d Cir. 2004)). A French interpreter was used (and

9    Balde listed French on his asylum application as a language he

10   spoke fluently); the interviewer asked Balde questions designed

11   to elicit an asylum and CAT claim; the questions and answers

12   were memorialized in a typewritten document; and at no point

13   did Balde appear to have difficulty answering the interviewer’s

14   questions. Because the record of the interview is reliable, the

15   agency was entitled to consider it in assessing Balde’s

16   credibility.        Id.   Balde argues that the BIA ignored his

17   arguments as to why the interview record is unreliable. While

18   the BIA did not specifically address each of Balde’s arguments,

19   these same arguments were rejected by the IJ, and the BIA

20   reasonably affirmed the IJ’s conclusion that the interview

21   record was reliable.

22        Second, the agency reasonably relied on the inconsistency

23   between Balde’s credible fear interview statements and testimony
                                         4
1    about his involvement with the Union of Democratic Forces of

2    Guinea (“UFDG”). See Xiu Xia Lin, 534 F.3d at 163-64. During

3    his interview, Balde was asked whether he held “any position

4    or title within [the UFDG],” and he responded that he “was a

5    simple militant and member of the party.”       Balde testified,

6    however, that he held a “position” in the party as “the secretary

7    for information in the Dixinn community.” When asked about this

8    discrepancy, Balde responded that the asylum officer “did not

9    ask [him] what position [he held] or whether [he] held a position

10   with [the] party.” The IJ reasonably rejected this explanation

11   because it was contradicted by the interview record. Majidi,

12   430 F.3d at 80.

13       Third, the agency reasonably relied on the inconsistencies

14   among Balde’s credible fear interview, testimony, and asylum

15   application about whether he was ever physically harmed in

16   Guinea. See Xiu Xia Lin, 534 F.3d at 163-64. Balde responded

17   “No” when asked during his credible fear interview if he had

18   ever been “harmed or mistreated” or “beaten or tortured” in

19   Guinea. In his asylum application, however, Balde stated that

20   he was beaten with rubber batons by the military at a strike

21   protest, and he testified that he was beaten with sticks and

22   guns.    When   confronted   with   these   discrepancies,   Balde

23   responded that he began to explain to the asylum officer what
                                     5
1    happened, but that the officer directed him to answer with only

2    yes or no. The IJ was not compelled to accept this explanation

3    because, as the IJ observed, the transcript of the record shows

4    that Balde gave comprehensive answers beyond “yes” or “no”

5    several times during his interview, and Balde’s explanation also

6    does not account for why he did not answer “Yes” when asked during

7    his interview if he had ever been harmed or beaten. See Majidi,

8    430 F.3d at 80.

9         Fourth, the agency reasonably relied on the inconsistencies

10   between Balde’s testimony and asylum application regarding how

11   he obtained the incriminating videos of the military.     See Xiu

12   Xia Lin, 534 F.3d at 163-64. In his asylum application, Balde

13   stated that he obtained videos of the military killing members

14   of the political opposition at the stadium in Conakry because

15   he owned an internet café and several people who witnessed the

16   massacre came there to upload their videos. However, Balde

17   testified that he obtained the videos from members of the

18   military who came to his internet café, and he later testified

19   that he filmed some of the videos himself. When asked about these

20   discrepancies, Balde responded that he did not state in his

21   application that he filmed some of the videos because he was

22   not asked and that the videos he was referring to in his

23   application were filmed on a different day than the massacre.
                                     6
 1   The IJ was not compelled to accept these varying explanations.

 2   See Majidi, 430 F.3d at 80.

 3        In his brief, Balde asserts several new explanations for

 4   the inconsistencies cited above.       However, we decline to

 5   consider these explanations because they were not presented to

 6   the IJ or BIA.   See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d

 7   104, 122 (2d Cir. 2007).

 8        Finally, the agency reasonably found Balde’s corroborating

 9   evidence insufficient to rehabilitate his credibility because

10   his supporting letters were inconsistent with his testimony and

11   their authors were not available for cross-examination.      See

12   Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (an

13   applicant’s failure to corroborate testimony may bear on

14   credibility, either because the absence of particular evidence

15   is viewed as suspicious, or “because the absence of corroboration

16   in general makes an applicant unable to rehabilitate testimony

17   that has already been called into question”). Balde does not

18   meaningfully challenge this finding in his brief and has

19   therefore waived review of the agency’s bases for discounting

20   his evidence. Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.

21   1998) (“Issues not sufficiently argued in the briefs are

22   considered waived and normally will not be addressed on

23   appeal.”).
                                     7
1          Given   the      foregoing   inconsistencies     among   Balde’s

2    testimony, asylum application, and credible fear interview, and

3    his    insufficient      corroboration,    the   totality      of   the

4    circumstances supports the agency’s credibility ruling.             Xiu

5    Xia Lin, 534 F.3d at 165-66. A reasonable adjudicator would not

6    be    compelled   to    conclude   otherwise.    Id.   at   167.    The

7    credibility finding is dispositive of asylum, withholding of

8    removal, and CAT relief because all three claims are based on

9    the same factual predicate. See Paul v. Gonzales, 444 F.3d 148,

10   156-57 (2d Cir. 2006).

11         For the foregoing reasons, the petition for review is

12   DENIED.

13                                      FOR THE COURT:
14                                      Catherine O’Hagan Wolfe, Clerk




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