         11-3580
         Diallo v. Holder
                                                                                        BIA
                                                                                   Ferris, IJ
                                                                               A095 148 481
                             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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 15th day of May, two thousand thirteen.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                ROBERT A. KATZMANN,
 9                BARRINGTON D. PARKER,
10                     Circuit Judges.
11       _______________________________________
12
13       MOUCTAR DABY DIALLO, AKA FERDINAND
14       W AUGUSTE,
15                Petitioner,
16
17                          v.                                  11-3580
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:               Nita Dobroshi, The Law Offices of
25                                     Spar & Bernstein, P.C., New York,
26                                     New York.
27
28       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
29                                     Attorney General; John S. Hogan,
 1                           Senior Litigation Counsel; David H.
 2                           Wetmore, Trial Attorney, 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

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

 9   ORDERED, ADJUDGED, AND DECREED that the petition for review

10   is DENIED.

11       Petitioner Mouctar Daby Diallo, a native and citizen of

12   Guinea, seeks review of an August 11, 2011, decision of the

13   BIA affirming the November 30, 2009, decision of Immigration

14   Judge (“IJ”) Noel Ferris, denying his application for

15   asylum, withholding of removal, and relief under the

16   Convention Against Torture (“CAT”).   In re Mouctar Daby

17   Diallo a.k.a. Ferdinand W. Auguste, No. A095 148 481 (B.I.A.

18   Aug. 11, 2011), aff’g No. A095 148 481 (Immig. Ct. N.Y. City

19   Nov. 30, 2009).   We assume the parties’ familiarity with the

20   underlying facts and procedural history in this case.

21       We have reviewed both the IJ’s and the BIA’s opinions

22   “for the sake of completeness.”   Zaman v. Mukasey, 514 F.3d

23   233, 237 (2d Cir. 2008).   The applicable standards of review

24   are well-established.   See 8 U.S.C. § 1252(b)(4)(B); see

25   also Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.


                                   2
 1   2005).   For asylum applications submitted prior to the

 2   passage of the REAL ID Act, such as Diallo’s application,

 3   any adverse credibility determination must be based on

 4   “specific, cogent reasons” that “bear a legitimate nexus” to

 5   the finding, and any discrepancy must be “substantial” when

 6   measured against the record as a whole.   See Secaida-Rosales

 7   v. INS, 331 F.3d 297, 307 (2d Cir. 2003), superseded by the

 8   REAL ID Act as recognized in Xiu Xia Lin v. Mukasey, 534

 9   F.3d 162, 163-64 (2d Cir. 2008).   The agency’s adverse

10   credibility determination is supported by substantial

11   evidence.

12       In finding Diallo not credible, the IJ relied in part

13   on Diallo’s demeanor, reasonably finding his testimony non-

14   responsive and often incoherent.   See Majidi v. Gonzales,

15   430 F.3d 77, 81 n.1 (2d Cir. 2005).   The IJ’s demeanor

16   finding was further supported by specific examples of

17   contradictory testimony and inconsistent record evidence.

18   See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109

19   (2d Cir. 2006) (“We can be still more confident in our

20   review of observations about an applicant’s demeanor where,

21   as here, they are supported by specific examples of

22   inconsistent testimony.”).   Indeed, the IJ reasonably found


                                   3
 1   discrepancies between Diallo’s testimony regarding whether

 2   he was arrested before or after an election in Guinea, and

 3   inconsistencies between his original and amended asylum

 4   applications and his testimony regarding where his wife

 5   lived after fleeing their country.       See Zhou Yun Zhang v.

 6   INS, 386 F.3d 66, 74 (2d Cir. 2004), overruled in part on

 7   other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 94

 8   F.3d 296, 305 (2d Cir. 2007).       Diallo failed to provide a

 9   compelling explanation for these inconsistencies.       See

10   Majidi, 430 F.3d at 80-81.

11       In finding Diallo not credible, the agency also

12   reasonably relied on his submission of a Guinean National

13   Identity Card, which, even if authentic, was determined to

14   have been altered as to the information included on the

15   card, including the name of the bearer.       See Siewe v.

16   Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (relying on the

17   doctrine of falsus in uno, falsus in omnibus); see also

18   Borovikova v. U.S. Dep’t of Justice, 435 F.3d 151, 157-58

19   (2d Cir. 2006) (concluding that the submission of a

20   fraudulent document in support of an asylum application

21   alone may constitute substantial evidence to support an

22   adverse credibility finding).       Having questioned Diallo’s

23   credibility, Diallo’s failure to provide certain

                                     4
 1   corroborating evidence was reasonably considered by the

 2   agency to negatively reflect on his credibility.     See Biao

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

 4   Ultimately, the agency’s adverse credibility determination

 5   was supported by substantial evidence and provided an

 6   adequate basis of denying Diallo’s application for asylum,

 7   withholding of removal, and CAT relief because those claims

 8   were based on the same factual predicate.     See Paul v.

 9   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

10       For the foregoing reasons, the petition for review is

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

12   removal that the Court previously granted in this petition

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

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

15   oral argument in this petition is DENIED in accordance with

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

17   Circuit Local Rule 34.1(b).

18                                 FOR THE COURT:
19                                 Catherine O’Hagan Wolfe, Clerk




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