12-3114
Diakite v. Lynch
                                                                                BIA
                                                                          Abrams, IJ
                                                                        A079 290 917
                    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.

     At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 18th day of March, two thousand sixteen.

PRESENT: ROSEMARY S. POOLER,
         REENA RAGGI,
         PETER W. HALL,
              Circuit Judges.
_____________________________________

ABOUBAKAR DIAKITE,
         Petitioner,

                   v.                                   12-3114-ag
                                                        NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
         Respondent.*
_____________________________________

FOR PETITIONER:                Khagendra Gharti Chhetry, Chhetry &
                               Associates, New York, New York.

FOR RESPONDENT:                Stuart F. Delery, Acting Assistant
                               Attorney General; Terri J. Scadron,


              *
          Pursuant to Federal Rule of Appellate Procedure
    43(c)(2), Attorney General Loretta E. Lynch is
    automatically substituted for former Attorney General
    Eric H. Holder, Jr. as Respondent.
                        Assistant Director; Siu P. Wong,
                        Trial Attorney, Office of
                        Immigration Litigation, United
                        States Department of Justice,
                        Washington, D.C.

    UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

    Petitioner Aboubakar Diakite, a native and citizen of

Mauritania, seeks review of a July 13, 2012 order of the

BIA, affirming the May 5, 2011 decision of Immigration Judge

(“IJ”) Steven Abrams, which pretermitted his application for

asylum and denied his application for withholding of removal

and relief under the Convention Against Torture (“CAT”).     In

re Aboubakar Diakite, No. A079 290 917 (B.I.A. July 13,

2012), aff’g No. A079 290 917 (Immig. Ct. N.Y.C. May 5,

2011).   We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

    Under the circumstances of this case, we have reviewed

both the BIA’s and IJ’s opinions.   See Yun-Zui Guan v.

Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).    The applicable

standards of review are well-established.     See 8 U.S.C.

§ 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513


                              2
(2d Cir. 2009).   As an initial matter, because Diakite does

not challenge the agency’s pretermission of his asylum claim

as untimely, we do not address it here.

1.   Past Persecution

     In pre-REAL ID Act cases, such as this one, an adverse

credibility determination must be based on “specific, cogent

reasons” that “bear a legitimate nexus” to the finding, and

any discrepancy must be “substantial” when measured against

the record as a whole.   See Secaida-Rosales v. INS, 331 F.3d

297, 307 (2d Cir. 2003) (internal quotation marks omitted).

In finding that Diakite failed credibly to establish past

persecution, the agency reasonably relied on the

inconsistency between his testimony and asylum statement

regarding the number of times that the Mauritanian

authorities deported his family to Senegal.   Contrary to

Diakite’s assertions, the agency properly determined that

this inconsistency went to the heart of his claim because it

concerned the very persecution that he allegedly suffered in

Mauritania.   See Majidi v. Gonzales, 430 F.3d 77, 81 (2d

Cir. 2005) (providing that inconsistencies between written

statement and testimony regarding politically motivated

attack supported adverse credibility finding, as it was “an


                              3
example of the very persecution from which he sought

asylum”); Belortjaja v. Gonzales, 484 F.3d 619, 626 (2d Cir.

2007) (upholding adverse credibility finding based on

omissions from affidavit of two incidents that went to heart

of asylum claim).   Indeed, Diakite’s former attorney

conceded before the IJ that this inconsistency was not

minor.

    While Diakite attributed the inconsistency to his youth

at the relevant time or to a mistake by the preparer of his

initial application, the agency reasonably rejected these

explanations.   It noted first that, although Diakite was

only fifteen at the time of his first alleged deportation,

he should have remembered living in a Senegalese refugee

camp for two years. See Majidi, 430 F.3d at 80-81 (noting

that agency need not credit applicant’s explanations for

inconsistent testimony unless explanations would compel

reasonable fact-finder to do so).   Additionally, although

the “circumstances surrounding the application process do

not often lend themselves to a perfectly complete and

comprehensive recitation,” Secaida-Rosales, 331 F.3d at 308,

the agency reasonably concluded that this concern was

substantially diminished here by the fact that Diakite also


                              4
omitted his second deportation from a revised application

statement prepared with the assistance of counsel and

submitted for the purpose of supplementing the application

filed by his initial preparer.    Because we find the agency’s

adverse credibility determination to be supported by

substantial evidence on the basis of this inconsistency

alone, we decline to consider the numerous additional bases

cited by the IJ for finding Diakite not credible.     See INS

v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule

courts and agencies are not required to make findings on

issues the decision of which is unnecessary to the results

they reach.”).

2.     Future Persecution and Torture

       Contrary to Diakite’s assertion, the agency did not

fail to consider whether there was a pattern or practice of

persecution of persons similarly situated to him in

Mauritania.    Although the agency did not expressly reference

a pattern-or-practice based claim, it effectively rejected

such a theory when, based on the 2010 Human Rights Report,1




         1
           Diakite’s contention that the agency violated due
     process by taking administrative notice of the 2010 Human
     Rights Report is without merit. See Qun Yang v. McElroy,
     277 F.3d 158, 163 n.4 (2d Cir. 2002) (“It is well-settled
                                5
it concluded that Diakite had not established a well-founded

fear of future persecution on account of his race and

ethnicity.   For example, the agency found, among other

things, that conditions in Mauritania for persons of

Diakite’s race and ethnicity had fundamentally changed

because: (1) Maaouya Ould Sid’Ahmed Taya, the president who

had overseen the forced deportation of Afro-Mauritanians

between 1989 and 1991, had lost power in a 2005 coup;

(2) after the 2009 presidential election, seven of the

government’s 29 cabinet members were Afro-Mauritanians; and

(3) the government had undertaken a large-scale return and

reintegration program for Afro-Mauritanians expelled between

1989 and 1991, which included the return of over 17,000

people in 2009.   Because the changed circumstances

determination informing the agency’s rejection of any

pattern-or-practice basis for a professed fear of

persecution was thus ”tethered to the evidentiary record, we

will accord deference to the finding.”   Siewe v. Gonzales,

480 F.3d 160, 169 (2d Cir. 2007); see also id. at 68

(“[S]upport for a contrary inference – even one more




  that the BIA has the authority to take administrative
  notice of current events bearing on an applicant’s
  well-founded fear of persecution.”).
                             6
plausible or more natural – does not suggest error.”); Xiao

Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 432 (2d Cir.

2006) (holding that weight afforded to applicant’s evidence

in immigration proceedings lies largely within discretion of

agency).

    Having reasonably determined that Diakite failed to

establish a well-founded fear of persecution on the basis of

his race and ethnicity, the agency did not err in finding

that he also failed to demonstrate a likelihood of

persecution or torture on this basis and, therefore, was

ineligible for asylum, withholding of removal, and CAT

relief.    See Ramsameachire v. Ashcroft, 357 F.3d 169, 178

(2d Cir. 2004).

    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 34.1(b).

                    FOR THE COURT:
                    Catherine O’Hagan Wolfe, Clerk of Court




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