         10-857-ag
         Sesay v. Holder
                                                                                       BIA
                                                                                LaForest, IJ
                                                                               A095 405 335
                            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 1st day of July, two thousand eleven.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                PIERRE N. LEVAL,
 9                ROSEMARY S. POOLER,
10                     Circuit Judges.
11       _______________________________________
12
13       MOHAMED SESAY,
14                Petitioner,
15
16                         v.                                   10-857-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Thomas V. Massucci, New York, New
24                                     York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Leslie McKay, Assistant
28                                     Director; Jason Wisecup, Trial
29                                     Attorney, Office of Immigration
30                                     Litigation; Civil Division, U.S.
31                                     Department of Justice, Washington,
32                                     D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   is DENIED.

 5       Mohamed Sesay, a native and citizen of Sierra Leone,

 6   seeks review of a February 19, 2010, order of the BIA

 7   affirming the May 21, 2008, decision of Immigration Judge

 8   (“IJ”) Brigitte LaForest denying Sesay’s application for

 9   withholding of removal and relief under the Convention

10   Against Torture (“CAT”).   In re Mohamed Sesay, No. A095 405

11   335 (B.I.A. Feb. 19, 2010), aff’g No. A095 405 335 (Immig.

12   Ct. N.Y. City May 21, 2008).     We assume the parties’

13   familiarity with the underlying facts and procedural history

14   of the case.

15       Under the circumstances of this case, we review the

16   IJ’s decision as the final agency determination.     See Mei

17   Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 523 (2d Cir.

18   2007).   The agency’s factual findings, including adverse

19   credibility determinations, are reviewed under the

20   substantial evidence standard.     See Corovic v. Mukasey, 519

21   F.3d 90, 95 (2d Cir. 2008).    Questions of law, and the

22   application of law to undisputed facts, are reviewed de


                                    2
 1   novo.    Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.

 2   2008).

 3       Substantial evidence supports the IJ’s adverse

 4   credibility determination.   We will not disturb adverse

 5   credibility determinations when they are based on “specific

 6   examples in the record of inconsistent statements . . .

 7   about matters material to [an applicant’s] claim of

 8   persecution, or on contradictory evidence or inherently

 9   improbable testimony regarding such matters.”    Zhou Yun

10   Zhang v. INS, 386 F.3d 66, 74 (2d Cir. 2004) (internal

11   quotation marks omitted), overruled in part on other grounds

12   by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305

13   (2d Cir. 2007).   In making the adverse credibility

14   determination in this case, the IJ found Sesay not credible

15   because of inconsistencies between his testimony and his

16   statements in his amended asylum application regarding: (1)

17   the length of time his father was missing after the rebels

18   kidnaped him; (2) when his legs were burned during a rebel

19   attack; and (3) when he left Sierra Leone.    As the IJ

20   pointed out specific inconsistencies related to the rebel

21   attacks on Sesay’s family, there is no basis for reversal of

22   the adverse credibility determination.    See Zhou Yun Zhang,


                                    3
 1   386 F.3d at 74; Secaida-Rosales v. INS, 331 F.3d 297, 307

 2   (2d Cir. 2003) (providing that an adverse credibility

 3   determination must be based on “specific, cogent reasons”

 4   that “bear a legitimate nexus” to the finding); Tu Lin v.

 5   Gonzales, 446 F.3d 395, 402 (2d Cir. 2006) (“even where an

 6   IJ relies on discrepancies or lacunae that, if taken

 7   separately, concern matters collateral or ancillary to the

 8   claim, . . . the cumulative effect may nevertheless be

 9   deemed consequential by the fact-finder” (internal citations

10   omitted)).   We further find no error in the IJ’s refusal to

11   credit Sesay’s explanations for the inconsistencies, as his

12   explanations do not compel a finding of credibility.     See

13   Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005); 8

14   C.F.R. § 1208.3(c)(2) (providing a rebuttable presumption

15   that an asylum applicant is aware of the contents of the

16   application at the time it is filed).

17       Because Sesay’s withholding of removal and CAT claims

18   share the same factual predicate, the IJ’s adverse

19   credibility determination precludes either form of relief.

20   See Paul v. Gonzales, 444 F.3d 148, 157 (2d Cir. 2006).

21   Because the adverse credibility determination is

22   dispositive, we do not reach the agency’s alternate burden

23   of proof findings.

                                   4
1       For the foregoing reasons, the petition for review is

2   DENIED.   As we have completed our review, the pending motion

3   for a stay of removal in this petition is DISMISSED as moot.

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

6




                                  5
