         13-682
         Jalloh v. Holder
                                                                                       BIA
                                                                                Bukszpan, IJ
                                                                               A078 736 544
                             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 22nd day of April, two thousand fifteen.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                DEBRA ANN LIVINGSTON,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _____________________________________
12
13       ALIEU JALLOH,
14                Petitioner,
15
16                          v.                                  13-682
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Amy Nussbaum Gell, Gell & Gell, New
24                                     York, NY.
25
26       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
27                                     General; Douglas E. Ginsburg,
28                                     Assistant Director; Andrew B.
29                                     Insenga, Trial Attorney, Office of
 1                             Immigration Litigation, United
 2                             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       Petitioner Alieu Jalloh, an alleged native and citizen

10   of Sierra Leone, seeks review of a January 29, 2013 order of

11   the BIA, affirming the September 29, 2010 decision of an

12   Immigration Judge (“IJ”), which denied asylum, withholding

13   of removal, and relief under the Convention Against Torture

14   (“CAT”).     In re Alieu Jalloh, No. A078 736 544 (B.I.A. Jan.

15   29, 2013), aff’g No. A078 736 544 (Immig. Ct. New York City

16   Sep. 29, 2010).    We assume the parties’ familiarity with the

17   underlying facts and procedural history in this case.

18       Under the circumstances of this case, we have reviewed

19   the IJ’s decision as modified by the BIA.     See Xue Hong Yang

20   v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).

21   The applicable standards of review are well established.

22   See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562

23   F.3d 510, 513 (2d Cir. 2009); Secaida-Rosales v. INS, 331

24   F.3d 297, 307 (2d Cir. 2003), overruled with respect to REAL



                                     2
 1   ID Act cases by Xiu Xia Lin v. Mukasey, 534 F.3d 162 (2d

 2   Cir. 2008).

 3          Because Jalloh filed his application in 2000, the REAL

 4   ID Act does not apply in this case.     See REAL ID Act of

 5   2005, Div. B of Pub. L. No. 109-13, 119 Stat. 302, 303

 6   (2005) (codified at 8 U.S.C. § 1158(b)(1)(B)(iii)); Matter

 7   of S-B-, 24 I. & N. Dec. 42, 45 (B.I.A. 2006).     In pre-REAL

 8   ID Act cases, an adverse credibility determination must be

 9   based on “specific, cogent reasons” that “bear a legitimate

10   nexus” to the finding, and any discrepancy must be

11   “substantial” when measured against the record as a whole.

12   See Secaida-Rosales, 331 F.3d at 307.     The agency does not

13   err in basing an adverse credibility determination on the

14   submission of fraudulent identity documents.     See Borovikova

15   v. U.S. Dep’t of Justice, 435 F.3d 151, 157-58 (2d Cir.

16   2006); Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007).

17          It may be that the IJ should have explicitly found that

18   he knew that his passport and ID card were fraudulent, but

19   Jalloh failed to exhaust this challenge on appeal before the

20   BIA.    Instead he argued to the BIA that the IJ ignored

21   evidence that the documents were valid.    The statute

22   requires that petitioners exhaust each category of relief


                                    3
 1   they seek. 8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462

 2   F.3d 113, 119 (2d Cir. 2006).       Petitioners must raise

 3   specific issues with the BIA before raising them here.          See

 4   Foster v. INS, 376 F.3d 75, 77-78 (2d Cir. 2004).       Issue

 5   exhaustion is mandatory: “If[, as here,] the government

 6   points out to the appeals court that an issue relied on

 7   before that court by a petitioner was not properly raised

 8   below, the court must decline to consider that issue, except

 9   in [] extraordinary situations.”       Lin Zhong v. U.S. Dep’t of

10   Justice, 480 F.3d 104, 107 n.1 (2d Cir. 2007).

11          We decline to consider Jalloh’s unexhausted challenge

12   to the IJ’s failure to explicitly find that he knew his

13   passport and ID card were fake.       As a result, Jalloh is

14   unable to rely on any such defect in the credibility

15   determination.    See Borovikova, 435 F.3d at 157-58

16   (explaining that the fraudulent document alone could support

17   an adverse credibility determination); Siewe, 480 F.3d at

18   170.

19          The adverse credibility determination was further

20   supported by findings that Jalloh’s testimony about where he

21   lived in Sierra Leone was “exceptionally vague” and that his

22   lack of knowledge about post-war events in Sierra Leone was


                                     4
 1   implausible.    He does not challenge those findings.   See

 2   Yueqing Zhang v. Gonzales, 426 F.3d 540, 542 n.1 (2d Cir.

 3   2005) (“‘Issues not sufficiently argued in the briefs are

 4   considered waived and normally will not be addressed on

 5   appeal.’” (quoting Norton v. Sam’s Club, 145 F.3d 114, 117

 6   (2d Cir. 1998))).

 7       We conclude that the adverse credibility determination

 8   is properly based on “specific, cogent reasons” that “bear a

 9   legitimate nexus” to the finding.     Secaida-Rosales, 331 F.3d

10   at 307.    The credibility determination is dispositive of his

11   claims for asylum, withholding of removal, and CAT relief,

12   as all claims share the same factual predicate.     See Paul v.

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

14   426 F.3d at 523.

15       Lastly, Jalloh contents that the agency failed to

16   properly weigh all of the evidence.    The contention is

17   misplaced because the weight accorded to evidence lies

18   largely within the discretion of the agency.     See Xiao Ji

19   Chen v. US Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.

20   2006).    Moreover, the agency explicitly referenced the

21   evidence on the record, observed that it had no way of

22   ascertaining the identity of anyone abroad who was

23   proffering the evidence, and found that the evidence did not
                                    5
 1   rebut the findings of the Forensic Document Laboratory

 2   report regarding the fraudulent passport and ID card.     The

 3   record therefore does not suggest that any evidence was

 4   ignored.    Id. at 337 n.17 (presuming that the agency “has

 5   taken into account all of the evidence before [it], unless

 6   the record compellingly suggests otherwise”).

 7       For the foregoing reasons, the petition for review is

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

 9   removal that the Court previously granted in this petition

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

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

12   oral argument in this petition is DENIED in accordance with

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

14   Circuit Local Rule 34.1(b).

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




                                    6
