08-5772-ag
Barry v. Holder
                                                                                     BIA
                                                                            Balasquide, IJ
                                                                            A079 587 755
                       UNITED STATES COURT OF APPEALS
                           FOR THE SECOND CIRCUIT

                             SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE
32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH
A LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT
LEAST ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE
NOTATION: “(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT
SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY
NOT REPRESENTED BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC
DATABASE WHICH IS PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE
AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE
AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO
THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.


     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 4 th day of December, two thousand nine.

PRESENT:
                  DENNIS JACOBS,
                           Chief Judge,
                  JON O. NEWMAN,
                  DEBRA ANN LIVINGSTON,
                           Circuit Judges.

_____________________________________

IBRAHIMA BARRY,
         Petitioner,

                  v.                                                   08-5772-ag
                                                                              NAC

ERIC H. HOLDER, JR., 1
UNITED STATES ATTORNEY GENERAL,
         Respondent.
__________________________________

FOR PETITIONER:                 Ronald S. Salomon, New York, New York.


      1
       Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General
Eric H. Holder, Jr., is automatically substituted for former Attorney General
Michael B. Mukasey as the respondent in this case.
F O R RESPONDENT:       Tony West, Assistant Attorney General,
                        Civil Division; Terri J. Scadron,
                        Assistant Director; Siu P. Wong, Trial
                        Attorney;   Office    of   Immigration
                        Litigation,    U.S.    Department   of
                        Justice, Washington, D.C.

     UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED.

     Petitioner Ibrahima Barry, a native and citizen of
Mauritania, seeks review of an October 28, 2008 order of the
BIA affirming the January 31, 2007 decision of Immigration
Judge Javier Balasquide, denying his application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Ibrahima Barry, No. A079 587
755 (B.I.A. Oct. 28, 2008), aff’g No. A079 587 755 (Immig. Ct.
N.Y. City Jan. 31, 2007). We assume the parties’ familiarity
with the underlying facts and procedural history in this case.

     When the BIA adopts the decision of the IJ and supplements
the IJ’s decision, this Court reviews the decision of the IJ
as supplemented by the BIA.     See Yan Chen v. Gonzales, 417
F.3d 268, 271 (2d Cir. 2005). We review the agency’s factual
findings, including adverse credibility determinations, under
the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B);
see, e.g., Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008).
Questions of law and the application of law to undisputed fact
are reviewed de novo. Salimatou Bah v. Mukasey, 529 F.3d 99,
104 (2d Cir. 2008).

     The  agency’s   adverse   credibility  determination   is
supported by substantial evidence. See Corovic, 519 F.3d at
95. The IJ identified the following five discrepancies in the
record: (1) Barry stated in his asylum application that he was
arrested in 1986 because of an FLAM manifest, but testified
that he was arrested because he attended an FLAM rally; (2) he
stated in his asylum application that both he and his brother
were arrested on another occasion in 1986, but he testified
that only his brother was arrested at that time; (3) he stated
in his asylum application that he was arrested once in 1992
and detained for two weeks, but testified variously that he
was arrested twice in 1992 and detained for one month, that he
was detained for two months, and that he was detained for only

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two weeks; (4) he stated in his asylum application that he was
arrested in 2000 because he was a member of the Popular Front
party, but testified that he was arrested in 2000 because he
attended an election rally and not because of his membership
in the party; and (5) he submitted an ID card indicating that
he became a member of the Popular Front party in 1999, but
testified that he did not become a member until 2000. These
were each discrepancies that went to the heart of Barry’s
claim because they call into question whether Barry was
politically active and whether he was persecuted on that
basis. See Hongsheng Leng v. Mukasey, 528 F.3d 135, 141-42 (2d
Cir. 2008).

     When asked to clarify the discrepancies, Barry testified
that the person who prepared his asylum applications must have
been confused and misunderstood. However, because Barry had
the opportunity to review his application and correct any
mistakes, no reasonable fact finder would be compelled to
accept his explanation. See Majidi v. Gonzales, 430 F.3d 77,
80-81 (2d Cir. 2005).

     Ultimately, we find no error in the IJ’s adverse
credibility determination.     Thus, the IJ properly denied
Barry’s application for asylum, withholding of removal, and
CAT relief because the only evidence of a threat to Barry’s
life or freedom depended on his credibility.     See Paul v.
Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); See Xue Hong Yang
v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).

     Finally, Barry argues that he was entitled to relief
because there is a pattern and practice of persecution against
blacks in Mauritania. However, because Barry did not exhaust
this argument before the BIA, we decline to consider it. Lin
Zhong v. U.S. Dep’t of Justice, 480 F.3d 104 at 107 n.1(b) (2d
Cir. 2007).

     For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument in
this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34(b).

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk

                            By:___________________________



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