         11-656-ag
         Fofana v. Holder
                                                                                       BIA
                                                                                 Brennan, IJ
                                                                               A093 408 626
                             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 15th day of February, two thousand twelve.
 5
 6       PRESENT:
 7                BARRINGTON D. PARKER,
 8                RICHARD C. WESLEY,
 9                RAYMOND J. LOHIER, JR.,
10                    Circuit Judges.
11       _______________________________________
12
13       FACINET GOULY FOFANA, AKA THIAN
14       IBRAHIM,
15                Petitioner,
16
17                          v.                                  11-656-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:               Bibiana C. Andrade, New York, N.Y.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Ada E. Bosque, Senior
28                                     Litigation Counsel, Puneet Cheema,
29                                     Trial Attorney, Office of
30                                     Immigration Litigation, Civil
31                                     Division, United States Department
32                                     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       Petitioner Facinet Gouly Fofana, a native of Mali and

 6   citizen of Guinea, seeks review of a January 24, 2011, order

 7   of the BIA affirming the January 15, 2009, decision of

 8   Immigration Judge (“IJ”) Noel Ann Brennan denying his

 9   application for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”).    In re Fofana,

11   No. A093 408 626 (B.I.A. Jan. 24, 2011), aff’g No. A093 408

12   626 (Immig. Ct. N.Y. City Jan. 15, 2009).    We assume the

13   parties’ familiarity with the underlying facts and

14   procedural history in this case.    Under the circumstances of

15   this case, we have reviewed the IJ’s decision as modified by

16   the BIA’s decision.   See Yang v. U.S. Dep't of Justice, 426

17   F.3d 520, 522 (2d Cir. 2005).

18       Fofana argues that the IJ’s adverse credibility finding

19   was not supported by the inconsistencies in his testimony.

20   However, as the BIA found, and as the Government points out,

21   Fofana’s appeal to the BIA did not present any specific

22   challenges to the IJ’s adverse credibility finding.


                                     2
 1   Accordingly, we decline to consider Fofana’s challenges to

 2   the adverse credibility finding because he failed to exhaust

 3   the arguments by presenting them to the BIA in the first

 4   instance.     See Zhong v. U.S. Dep't of Justice, 480 F.3d 104,

 5   122 (2d Cir. 2007) (reaffirming that this Court “may

 6   consider only those issues that formed the basis for [the

 7   BIA’s] decision”).     Because Fofana’s requests for asylum,

 8   withholding of removal, and CAT relief shared the same

 9   factual basis, the agency’s finding that his testimony was

10   not credible supports the agency’s denial of all three forms

11   of relief.     See Paul v. Gonzales, 444 F.3d 148, 157 (2d Cir.

12   2006).

13       For the foregoing reasons, the petition for review is

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

15   removal that the Court previously granted in this petition

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

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

18   oral argument in this petition is DENIED in accordance with

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

20   Circuit Local Rule 34.1(b).

21                                 FOR THE COURT:
22                                 Catherine O’Hagan Wolfe, Clerk
23
24




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