         10-4159-ag
         Bah v. Holder
                                                                                       BIA
                                                                                Bukszpan, IJ
                                                                               A099 928 088
                          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 28th day of February, two thousand eleven.
 5
 6       PRESENT:
 7                PETER W. HALL,
 8                DEBRA ANN LIVINGSTON,
 9                DENNY CHIN,
10                    Circuit Judges.
11       _____________________________________
12
13       MAMADOU ALIMOU BAH,
14                Petitioner,
15
16                       v.                                     10-4159-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Gary J. Yerman, New York,
24                                     New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Daniel E. Goldman, Senior
28                                     Litigation Counsel; Jonathan
29                                     Robbins, Trial Attorney, Office of
30                                     Immigration Litigation, United
31                                     States Department of Justice,
32                                     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 Mamadou Alimou Bah, a native and citizen of

 6   Guinea, seeks review of a September 20, 2010, order of the

 7   BIA, affirming the December 1, 2008, decision of Immigration

 8   Judge (“IJ”) Joanna M. Bukszpan, which denied his

 9   application for asylum, withholding of removal, and relief

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

11   Alimou Bah, No. A099 928 088 (B.I.A. Sept. 20, 2010), aff’g

12   No. A099 928 088 (Immig. Ct. N.Y.C. Dec. 1, 2008).      We

13   assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15       Under the circumstances of this case, we have reviewed

16   the decisions of both the BIA and the IJ.   See Xiao Xing Ni

17   v. Gonzales, 494 F.3d 260, 262 (2d Cir. 2007).    The

18   applicable standards of review are well-established.         See 8

19   U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey,     534 F.3d

20   162, 165-66 (2d Cir. 2008).

21       For applications like this one, governed by the REAL ID

22   Act of 2005, the agency may, considering the totality of the

23   circumstances, base a credibility finding on an asylum

                                   2
 1   applicant’s demeanor, the plausibility of his account, and

 2   inconsistencies in his statements, without regard to whether

 3   any inconsistencies, inaccuracies, or falsehoods go “to the

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

 5   § 1158(b)(1)(B)(iii); Matter of J-Y-C-, 24 I. & N. Dec. 260,

 6   265 (BIA 2007).   Analyzed under the REAL ID Act, the

 7   agency’s adverse credibility determination is supported by

 8   substantial evidence.

 9       In finding Bah to be incredible, the agency reasonably

10   determined that aspects of his testimony were implausible –

11   such as his contention that he lied about his alleged

12   imprisonment from February through May 2006 by telling his

13   employer, the Peace Corps, that he was on vacation and that,

14   when he returned to work, he requested and was granted

15   permission to take another vacation shortly thereafter.    See

16   Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2007)

17   (holding that where the IJ’s findings are “tethered to

18   record evidence, and there is nothing else in the record

19   from which a firm conviction of error could properly be

20   derived” the Court will not disturb the inherent

21   implausibility finding).

22



                                   3
 1       Although Bah argues that the agency failed to address

 2   his explanations for a medical record he submitted, dated

 3   during the time of his imprisonment, given his varying and

 4   inconsistent explanations regarding this record, the agency

 5   reasonably found that the document supported an adverse

 6   credibility determination.   See Majidi v. Gonzales, 430 F.3d

 7   77, 80-81 (2d Cir. 2005) (finding that the agency need not

 8   credit an applicant’s explanations for inconsistent

 9   testimony unless those explanations would compel a

10   reasonable fact-finder to do so). It is true, as Bah points

11   out, that neither the IJ nor the BIA explicitly evaluated

12   his explanations for the medical record’s date.   However,

13   “where it is apparent from the record that consideration was

14   given to an applicant’s testimony . . . it is not necessary

15   for the IJ to recite any particular verbal formula.”

16   Pavlova v. INS, 441 F.3d 82, 89 (2d Cir. 2006).   Here, the

17   IJ noted Bah’s explanations in his oral decision, thereby

18   demonstrating his consideration of them.   Cf. Contreras-

19   Salinas v. Holder, 585 F.3d 710, 714-15 (2d Cir. 2009)

20   (finding an IJ’s decision adequate where the IJ did not

21   “explicitly mention[]” certain evidence but “did note that

22   ‘in the record are some documents that the respondent


                                   4
 1   provided’ and that he ‘considered the evidence in the

 2   entirety’” (alterations omitted)).

 3       In finding Bah to be incredible, the agency also relied

 4   in part on a discrepancy between his visa application and

 5   his statements during a 2007 asylum interview regarding his

 6   marital status.   See 8 U.S.C. § 1158(b)(1)(B)(iii)

 7   (providing that an adverse credibility determination may be

 8   based on “the consistency between the applicant’s . . .

 9   written and oral statements (whenever made and whether or

10   not under oath, and considering the circumstances under

11   which the statements were made)”); Diallo v. Gonzales, 445

12   F.3d 624, 632 (2d Cir. 2006) (finding adverse credibility

13   determination may be supported by record of asylum interview

14   if it contains a “meaningful, clear, and reliable summary of

15   the statements made by [the applicant] at the interview”)

16   (internal quotation mark omitted).   Bah was questioned about

17   this inconsistency during the proceeding before the IJ,

18   although the transcript of this part of the proceeding has

19   not been included in the administrative record.   Remand on

20   this basis is not required, however, as even assuming that a

21   reasonable factfinder would be compelled to accept any

22   explanation for this discrepancy Bah may have proffered, the

23   agency's adverse credibility determination was also based on
                                   5
 1   other significant grounds.   See Singh v. BIA, 438 F.3d 145,

 2   149-50 (2d Cir. 2006) (finding remand would be futile where,

 3   although adverse credibility determination was based on two

 4   erroneous grounds, the Court could “confidently predict that

 5   the IJ would render the same decision in the absence of the

 6   errors” because the determination was supported by numerous

 7   other grounds) (internal quotation marks omitted).

 8       Finally, although Bah challenges the IJ’s finding that

 9   his corroborating documents were entitled to little weight

10   because they were not notarized at an embassy, the BIA did

11   not rely on this ground in dismissing his appeal and, as

12   discussed above, the adverse credibility finding is

13   supported on other bases – Bah's implausible testimony that

14   his employer would permit him to take a vacation to America

15   shortly after his more than two month absence from work

16   which Bah also told his employer was a “vacation,” as well

17   as his submission of a medical record dated during the time

18   of his supposed imprisonment.       Given these inconsistencies,

19   substantial evidence supports the adverse credibility

20   determination, and the agency did not err in denying Bah’s

21   applications for asylum, withholding of removal, and CAT

22   relief, as those claims were all based on the same factual

23   predicate.   See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

24   2006).
                                     6
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
11
12




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