         13-528
         Ousmane v. Holder
                                                                                        BIA
                                                                                 Verrillo, IJ
                                                                               A098 857 780


                                  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 TO 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
 2       Appeals for the Second Circuit, held at the Thurgood Marshall
 3       United States Courthouse, 40 Foley Square, in the City of New
 4       York, on the 6th day of November, two thousand fourteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                GERARD E. LYNCH,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       FOULERA OUSMANE,
14
15                                 Petitioner,
16
17                           v.                                 13-528
18                                                              NAC
19
20       ERIC H. HOLDER, JR., UNITED
21       STATES ATTORNEY GENERAL,
22
23                                 Respondent.
24
25       _____________________________________
26
27       FOR PETITIONER:                    Foulera Ousmane, pro se, Bronx, New
28                                          York.
 1   FOR RESPONDENT:           Stuart F. Delery, Acting Assistant
 2                             Attorney General; John S. Hogan,
 3                             Senior Litigation Counsel; Matthew
 4                             Connelly, Trial Attorney, Office of
 5                             Immigration Litigation, United
 6                             States Department of Justice,
 7                             Washington D.C.

 8       UPON DUE CONSIDERATION of this petition for review of a

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

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

11   is DENIED.

12       Foulera Ousmane, a native and citizen of Togo, seeks

13   review of a January 15, 2013, decision of the BIA affirming

14   the November 3, 2010, decision of an Immigration Judge

15   (“IJ”), which denied her application for asylum, withholding

16   of removal, and relief pursuant to the Convention Against

17   Torture (“CAT”).   In re Foulera Ousmane, No. A098 857 780

18   (B.I.A. Jan 15, 2013), aff’g No. A098 857 780 (Immig. Ct.

19   Hartford Nov. 3, 2010).    We assume the parties’ familiarity

20   with the underlying facts and procedural history in this

21   case.

22       Under the circumstances of this case, we have reviewed

23   the IJ’s decision as supplemented by the BIA.    See Yan Chen

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

25   applicable standards of review are well established.     See 8


                                     2
 1   U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

 2   513 (2d Cir. 2009).

 3       We conclude that the inconsistencies cited by the

 4   agency provide substantial evidence to support the adverse

 5   credibility determination.   For asylum applications like

 6   Ousmane’s, governed by the REAL ID Act of 2005, the agency

 7   may, “[c]onsidering the totality of the circumstances,” base

 8   a credibility finding on inconsistencies in an asylum

 9   applicant’s statements without regard to whether they go “to

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

11   § 1158(b)(1)(B)(iii).   We “defer therefore to [the agency’s]

12   credibility determination unless, from the totality of the

13   circumstances, it is plain that no reasonable fact-finder

14   could make such an adverse credibility ruling.”    Xiu Xia Lin

15   v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam).

16       The agency reasonably based its adverse credibility

17   determination on the inconsistencies between Ousmane’s

18   testimony and asylum application.   A comparison shows

19   discrepancies regarding the circumstances surrounding her

20   and her husband’s arrest in Togo, the year of that arrest,

21   and the birth dates of her daughters, all of which call into

22   question her sole allegation of past harm–the arrest and

23   detention of herself and her husband.

                                   3
 1       Accordingly, the inconsistencies provide substantial

 2   evidence for the adverse credibility determination.     See 8

 3   U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.

 4   Moreover, the agency was not required to credit her

 5   explanation that she was nervous, as she was asked to

 6   explain her inconsistencies and her answers were themselves

 7   inconsistent.     See Majidi v. Gonzales, 430 F.3d 77, 80 (2d

 8   Cir. 2005).     She did not subsequently clarify her testimony.

 9   Because her claims for asylum, withholding of removal, and

10   CAT relief rely on the same factual predicate, the adverse

11   credibility determination is dispositive.     See Paul v.

12   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v.

13   U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).
14
15       For the foregoing reasons, the petition for review is

16   DENIED.

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




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