         13-2055
         Sanogo v. Holder
                                                                                        BIA
                                                                                   Sichel, IJ
                                                                               A088 378 063
                                 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 30th day of July, two thousand fourteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                ROBERT D. SACK,
 9                GERARD E. LYNCH,
10                     Circuit Judges.
11       _____________________________________
12
13       CHEIK TAHIROU SANOGO, AKA CHEIKTALO
14       SAVADOGO, AKA MAMADOU DIALLO,
15                Petitioner,
16
17                          v.                                  13-2055
18                                                              NAC
19
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,
22                Respondent.
23       _____________________________________
24
25       FOR PETITIONER:                  Gary J. Yerman, New York, New York.
26
27       FOR RESPONDENT:                  Stuart F. Delery, Assistant Attorney
28                                        General; Linda S. Wernery, Assistant
29                                        Director; William C. Minick, Trial
 1                           Attorney, Office of Immigration
 2                           Litigation, Civil Division, United
 3                           States Department of Justice,
 4                           Washington, D.C.
 5
 6       UPON DUE CONSIDERATION of this petition for review of a

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

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

 9   is DENIED.

10       Cheik Tahirou Sanogo, a purported native and citizen of

11   Ivory Coast, seeks review of an April 30, 2013, decision of

12   the BIA affirming the April 20, 2012, decision of an

13   Immigration Judge (“IJ”), pretermitting his asylum

14   application as untimely and denying withholding of removal

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

16   re Cheik Tahirou Sanogo, No. A088 378 063 (B.I.A. Apr. 30,

17   2013), aff’g No. A088 378 063 (Immig. Ct. N.Y. City Apr. 20,

18   2012).   We assume the parties’ familiarity with the

19   underlying facts and procedural history in this case.

20       Under the circumstances of this case, we have reviewed

21   the decision of the IJ as supplemented by the BIA.     See Yan

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

23   applicable standards of review are well established.     See 8

24   U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562

25   F.3d 510, 513 (2d Cir. 2009).

                                     2
 1   I.   Asylum

 2        An asylum applicant must demonstrate “by clear and

 3   convincing evidence,” that he filed his application within

 4   one year after arriving in the United States.     8 U.S.C.

 5   § 1158(a)(2)(B).     Our jurisdiction to review the agency’s

 6   timeliness determination is limited to constitutional claims

 7   and questions of law.     See 8 U.S.C. §§ 1158(a)(2)(B), (3),

 8   1252(a)(2)(D); Dong Zhong Zheng v. Mukasey, 552 F.3d 277,

 9   285 (2d Cir. 2009).

10        The IJ found that Sanogo lacked credibility regarding

11   the date of his last entry to the United States and

12   therefore failed to establish that he timely filed his

13   asylum application.     Sanogo challenges the reasonableness of

14   that credibility finding, which is a factual finding we lack

15   jurisdiction to review.     See 8 U.S.C. §§ 1158(a)(2)(B), (3),

16   1252(a)(2)(D).     Although he also argues that the IJ erred by

17   failing to make a determination of his nationality, a

18   threshold legal question in determining asylum eligibility,

19   see Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir. 2006), the

20   IJ was not required to reach that issue as Sanogo’s failure

21   to timely file was dispositive, see 8 U.S.C.

22   § 1158(a)(2)(B), (3).     Accordingly, we deny Sanogo’s

23   petition to the extent it challenges the denial of asylum.

                                     3
 1   II. Adverse Credibility Determination

 2       For applications such as Sanogo’s, governed by the REAL

 3   ID Act of 2005, the agency may, “[c]onsidering the totality

 4   of the circumstances,” base a credibility finding on the

 5   applicant’s “demeanor, candor, or responsiveness,” the

 6   plausibility of his account, and inconsistencies in his

 7   statements, without regard to whether they go “to the heart

 8   of the applicant’s claim.”     8 U.S.C. § 1158(b)(1)(B)(iii);

 9   Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008)

10   (per curiam).   “We defer therefore to an IJ’s credibility

11   determination unless, from the totality of the

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

13   could make such an adverse credibility ruling.”     Xiu Xia

14   Lin, 534 F.3d at 167.

15       The adverse credibility determination here is supported

16   by substantial evidence.     The IJ reasonably relied on the

17   following inconsistencies and omissions: (1) Sanogo’s

18   application did not mention his hospital visit upon his

19   release from Ivorian police custody; (2) he testified that

20   he first traveled to Burkina Faso and applied for a U.S.

21   visa upon his release in order to escape further harm, but

22   later conceded he had previously applied for a student visa


                                     4
 1   in Burkina Faso in 2003 and 2004; (3) he returned to Ivory

 2   Coast in 2006 because he believed “there would be no more

 3   problem[s],” but undermined that statement by conceding he

 4   had been aware of increased violence against ethnic Dioulas

 5   that year and by explaining that his father had been

 6   attacked earlier in 2006; (4) he then changed the year of

 7   his father’s attack to 2007; and (5) he testified that he

 8   gave his attorney the passport he used to enter Ivory Coast,

 9   but, when the attorney denied receiving it, said it was

10   stolen during his father’s attack.     See 8 U.S.C.

11   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 166.

12       The adverse credibility determination is further

13   supported by the IJ’s demeanor finding to which we generally

14   defer and of which can be particularly confident because

15   Sanogo’s non-responsive testimony is reflected in the

16   hearing transcript.     See Li Hua Lin v. U.S. Dep’t of

17   Justice, 453 F.3d 99, 109 (2d Cir. 2006).

18       The IJ also properly considered Sanogo’s failure to

19   provide convincing corroborating evidence in finding him not

20   credible.     See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d

21   Cir. 2007).     When an applicant’s testimony has already been

22   called into question, a failure to corroborate may further


                                     5
 1   bear on the applicant’s credibility.        Id.   The IJ reasonably

 2   expected evidence that Sanogo was a member of the Rally of

 3   the Republicans (“RDR”), participated in protests, sought

 4   medical attention after his detention, and returned to the

 5   Ivory Coast in 2006.   See id.       Although Sanogo asserted that

 6   his RDR membership papers had been confiscated and that his

 7   father, an RDR opponent, refused to obtain replacements, the

 8   IJ reasonably rejected this explanation because his father

 9   had twice facilitated his travel to the United States and

10   had no reason not to obtain these documents.         See Majidi v.

11   Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (providing that

12   the agency need not credit an applicant’s explanations

13   unless they would compel a reasonable fact-finder to do so).

14   The IJ also reasonably rejected Sanogo’s explanation that

15   his passport was stolen from his father because his

16   testimony regarding that attack was inconsistent.         See id.

17       Given these inconsistencies, the omission, the lack of

18   corroboration, and Sanogo’s non-responsive testimony, the

19   totality of the circumstances supports the agency’s adverse

20   credibility determination.   See Xiu Xia Lin, 534 F.3d at

21   167; Yanqin Weng, 562 F.3d at 513.       The adverse credibility

22   determination necessarily precludes withholding of removal


                                      6
 1   and CAT relief to the extent they relied on Sanogo’s RDR

 2   membership and claim that his family was attacked.     See Paul

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

 4   III. Future Harm based on Ethnicity

 5       It is unclear whether the IJ found that Sanogo’s lack

 6   of credibility also undermined his claim of Dioula

 7   ethnicity.   The IJ’s adverse credibility determination

 8   therefore did not preclude withholding or CAT relief based

 9   on that claim.   See Paul, 444 F.3d at 156 (requiring a

10   separate analysis of withholding and CAT eligibility when

11   claim is not entirely predicated on testimony deemed not

12   credible).   Nevertheless, as the IJ reasonably found, Sanogo

13   failed to establish a likelihood of harm based on his

14   ethnicity, given that his evidence did not address Dioulas

15   specifically, and the 2007, 2008, and 2010 U.S. State

16   Department Human Rights Reports state that the Ivorian

17   government outlawed racism and tribalism and that, with the

18   exception of some violence between other tribes, there is

19   only inter-tribal discrimination.     See 8 C.F.R. §§ 1208.16©,

20   1208.17.

21




                                   7
1       For the foregoing reasons, the petition for review is

2   DENIED.

3                              FOR THE COURT:
4                              Catherine O’Hagan Wolfe, Clerk
5
6
7




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