         09-5334-ag
         Diallo v. Holder
                                                                                       BIA
                                                                                Mulligan, IJ
                                                                               A097 535 483
                             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 September, two thousand ten.
 5
 6       PRESENT:
 7
 8                JOSEPH M. McLAUGHLIN,
 9                GUIDO CALABRESI,
10                RICHARD C. WESLEY,
11                         Circuit Judges.
12       _______________________________________
13
14       MAMADOU FALILOU DIALLO,
15       A.K.A. AMADOU DIALLO,
16                Petitioner,
17
18                          v.                                  09-5334-ag
19                                                              NAC
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,
22                Respondent.
23       _______________________________________
24
25       FOR PETITIONER:               Ronald S. Salomon, New York, New
26                                     York.
27
28       FOR RESPONDENT:               Tony West, Assistant Attorney
29                                     General; Jennifer L. Lightbody,
30                                     Senior Litigation Counsel; Nicole J.
31                                     Thomas-Dorris, Trial Attorney,
1                              Office of Immigration Litigation,
2                              United States Department of Justice,
3                              Washington, D.C.
4
5        UPON DUE CONSIDERATION of this petition for review of a

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

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

8    is DENIED.

9        Mamadou Falilou Diallo, a native and citizen of Guinea,

10   seeks review of a December 4, 2009, order of the BIA

11   affirming the September 24, 2008, decision of Immigration

12   Judge (“IJ”) Thomas J. Mulligan, pretermitting his asylum

13   application and denying his application for withholding of

14   removal and relief under the Convention Against Torture

15   (“CAT”).     In re Mamadou Falilou Diallo, No. A097 535 483

16   (B.I.A. Dec. 4, 2009), aff’g No. A097 535 483 (Immig. Ct.

17   N.Y. City Sept. 24, 2008).     We assume the parties’

18   familiarity with the underlying facts and procedural history

19   in this case.

20       Under the circumstances of this case, we review the

21   IJ’s decision as supplemented by the BIA’s decision.     See

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

23   applicable standards of review are well-established.

24   See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v.

25   Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).

                                     2
1        Diallo challenges the agency’s denial, on adverse

2    credibility grounds, of his claim for withholding of

3    removal.   However, substantial evidence supports the

4    agency’s adverse credibility determination.    For asylum

5    applications governed by the REAL ID Act, the agency may,

6    considering the totality of the circumstances, base a

7    credibility finding on an asylum applicant’s “demeanor,

8    candor, or responsiveness,” the plausibility of his or her

9    account, and inconsistencies in his or her statements,

10   without regard to whether they go “to the heart of the

11   applicant’s claim.”    See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu

12   Xia Lin, 534 F.3d at 167.

13       We defer to the IJ’s finding that Diallo’s “poor” and

14   “anxious” demeanor undermined his credibility.    See Majidi

15   v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005); see also

16   Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 116-17 (2d

17   Cir. 2007).   Additionally, the IJ reasonably based his

18   adverse credibility determination on several discrepancies

19   among Diallo’s testimony, his written application, and his

20   supporting evidence.    For example, the IJ noted that,

21   although Diallo testified that he was not a “member” of the

22   UPR, but merely a “supporter,” and that he did not know what



                                    3
1    UPR stood for, both his written application and a letter

2    from the president of the UPR provided that he was, in fact,

3    a “member” and his written application also indicated that

4    the UPR stood for “Union for Progress and Renewal.”    The IJ

5    also noted the inconsistency between Diallo’s testimony that

6    he was detained in Guinea for exactly four months, his

7    wife’s letter stating that he was detained for three months,

8    and a document requesting that his asylum application be

9    corrected to indicate that he was detained for three months

10   and nine days, as opposed to six months.   These

11   inconsistencies were proper bases for finding Diallo not

12   credible.   See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,

13   534 F.3d at 167.   To the extent that Diallo offered

14   explanations for these inconsistencies, the IJ was not

15   compelled to credit them.   See Majidi, 430 F.3d at 80-81.

16       Moreover, the IJ did not err in finding that Diallo’s

17   failure to present adequate corroborating evidence for his

18   claim of persecution further undermined his credibility. See

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

20   (finding that an applicant’s failure to corroborate his or

21   her testimony may bear on credibility, because the absence

22   of corroboration in general renders the applicant unable to



                                   4
1    rehabilitate testimony that has already been called into

2    question).

3        Finally, because Diallo failed to challenge the IJ’s

4    denial of his CAT claim in his appeal to the BIA, we are as

5    a statutory matter without jurisdiction to consider any

6    challenge to the denial of that relief.    See 8 U.S.C.

7    § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir.

8    2006).

9         For the foregoing reasons, the petition for review is

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

11   removal that the Court previously granted in this petition

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

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

14   oral argument in this petition is DENIED in accordance with

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

16   Circuit Local Rule 34.1(b).

17                                 FOR THE COURT:
18                                 Catherine O’Hagan Wolfe, Clerk
19
20




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