         10-294-ag                                                                      BIA
         Kane v. Holder                                                        Balasquide, IJ
                                                                               A095 589 155
                           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 29 th day of October, two thousand ten.
 5
 6       PRESENT:
 7                ROBERT A. KATZMANN,
 8                RICHARD C. WESLEY,
 9                DEBRA ANN LIVINGSTON,
10                        Circuit Judges.
11       _________________________________________
12
13       MADOU KANE,
14                Petitioner,
15
16                        v.                                    10-294-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Gary J. Yerman, Yerman & Associates,
24                                     LLC, New York, New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; John S. Hogan, Senior
28                                     Litigation Counsel; Michael C.
29                                     Heyse, Trial Attorney, Office of
30                                     Immigration Litigation, United
1                          States Department of Justice,
2                          Washington, D.C.
3        UPON DUE CONSIDERATION of this petition for review of a

4    Board of Immigration Appeals (“BIA”) decision, it is hereby

5    ORDERED, ADJUDGED, and DECREED, that the petition for review

6    is DENIED.

7        Madou Kane, a native and citizen of Mauritania, seeks

8    review of a December 28, 2009 order of the BIA affirming the

9    February 11, 2008 decision of Immigration Judge (“IJ”)Javier

10   Balasquide, which denied his applications for asylum,

11   withholding of removal, and relief under the Convention

12   Against Torture (“CAT”).    In re Kane, No. A095 589 155

13   (B.I.A. Dec. 28, 2009), aff’g No. A095 589 155 (Immig. Ct.

14   N.Y. City Feb. 11, 2008).    We assume the parties’

15   familiarity with the underlying facts and procedural history

16   in this case.

17       Under the circumstances of this case, we review the

18   decision of the IJ as supplemented by the BIA.    See Yan Chen

19   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).    The

20   applicable standards of review are well-established.       See

21   Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008);

22   Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d Cir. 2007).

23       As a preliminary matter, we note that we lack

24   jurisdiction to review the IJ’s denial of CAT relief,


                                    2
1    because Kane failed to exhaust this claim before the BIA.

2    See Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir. 2006).      As

3    to asylum and withholding of removal, we deny the petition

4    for review, as the agency’s adverse credibility

5    determination is supported by substantial evidence.

6        In finding Kane not credible, the agency reasonably

7    relied in part on inconsistencies between his testimony and

8    his written asylum applications.     See Secaida-Rosales v.

9    INS, 331 F.3d 297, 308-09 (2d Cir. 2003). *   Kane’s testimony

10   conflicted with his written asylum applications with respect

11   to whether he was detained together with his family and

12   whether he was allowed to return home after his detention.

13   When Kane was asked to explain the inconsistencies between

14   his applications and his testimony, he faulted the person

15   who had prepared his applications.     Given that his testimony

16   was inconsistent with both his initial and amended asylum

17   applications - prepared five years apart by different

18   individuals - the agency was not required to credit his


            *
             In Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d
       Cir. 2008), we recognized that the Real ID Act abrogated
       in part the holding in Secaida-Rosales for cases filed
       after May 11, 2005, the effective date of the Act. Id.
       Because Kane’s application was filed before this date,
       Secaida-Rosales remains good law. See Zheng v. Mukasey,
       552 F.3d 277, 287 n.6 (2d Cir. 2009).

                                   3
1    explanation.    See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d

2    Cir. 2005).    Further, contrary to Kane’s argument, the

3    discrepancies the agency relied upon consist of directly

4    contradictory statements, and cannot be explained as mere

5    additional detail.    Cf. Secaida-Rosales, 331 F.3d at 308-09.

6    Moreover, because these inconsistencies go to the heart of

7    Kane’s claim of past persecution, i.e., his arrest and

8    detention in 1989, and were “substantial” when measured

9    against the record as a whole, the agency did not err in

10   relying on the inconsistencies to find him not credible.

11   See id.; see also Pavlova v. INS, 441 F.3d 82, 90 (2d Cir.

12   2006).

13       The agency’s adverse credibility determination is

14   further supported by inconsistencies in the documents

15   submitted by Kane, particularly his national identification

16   card, which undermined his claim that he left Mauritania in

17   1989.    Kane argues that the IJ erred in relying on the

18   identification card to find him not credible because, based

19   on his testimony that he did not know how or when the

20   identification card was issued, there was no basis to find

21   that he knowingly submitted a fraudulent document.    We have

22   held that an IJ must make an explicit finding that the



                                    4
1    applicant knowingly submitted a fraudulent document before

2    using that document as the basis for an adverse credibility

3    finding.   See Corovic v. Mukasey, 519 F.3d 90, 97-98 (2d

4    Cir. 2008).   However, Kane misinterprets the IJ’s finding,

5    as the IJ did not find that Kane had submitted a fraudulent

6    identification card, but rather, taking the card at face

7    value, found that its date of issuance drew into serious

8    question whether Kane left Mauritania in 1989.   The IJ thus

9    did not err in relying on the national identification card

10   as a basis for his adverse credibility determination.     See

11   Xiu Xia Lin v. Mukasey, 534 F.3d 162, 166 n.3 (2d Cir.

12   2008).

13       Kane further argues that the IJ’s finding regarding the

14   national identification card is “legally erroneous” because

15   the IJ relied on the card to find Kane incredible, but also

16   stated in his decision that he gave “little or no weight” to

17   the identification card.   However, the IJ reasonably

18   determined that, to the extent the identification card was

19   entitled to any weight, it undermined Kane’s testimony.      See

20   Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d

21   Cir. 2006).   Ultimately, given the inconsistent testimony

22   regarding Kane’s arrest and expulsion from Mauritania, and

23   the submission of documents contradicting his testimony
                                   5
1    regarding his departure from Mauritania, the IJ’s adverse

2    credibility determination was supported by substantial

3    evidence.     See Shu Wen Sun, 510 F.3d at 379-80.   Because the

4    record supports the IJ’s conclusions, a reasonable fact-

5    finder would not be compelled to conclude to the contrary.

6    See Xian Tuan Ye v. Dep’t of Homeland Security, 446 F.3d

7    289, 294 (2d Cir. 2006).

8        Finally, since the only evidence of a threat to Kane’s

9    life or freedom depended upon his credibility, the adverse

10   credibility determination in this case necessarily precludes

11   success on the claim for withholding of removal.      See Paul

12   v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Wu Biao Chen

13   v. INS, 344 F.3d 272, 275 (2d Cir. 2003).

14       For the foregoing reasons, the petition for review is

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

16   removal that the Court previously granted in this petition

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

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

19   oral argument in this petition is DENIED in accordance with

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

21   Circuit Local Rule 34.1(b).

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



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