     18-1321
     Ba v. Barr
                                                                                   BIA
                                                                                Hom, IJ
                                                                           A206 280 434

                       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 Appeals
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 14th day of August, two thousand nineteen.
 5
 6   PRESENT:
 7            JON O. NEWMAN,
 8            DENNIS JACOBS,
 9            PETER W. HALL,
10                 Circuit Judges.
11   _____________________________________
12
13   ABOUBACRY BA, AKA ABOUBAKRY BA,
14
15                      Petitioner,
16
17                v.                                             18-1321
18                                                               NAC
19   WILLIAM P. BARR, UNITED STATES
20   ATTORNEY GENERAL,
21
22                 Respondent.
23   _____________________________________
24
25   FOR PETITIONER:                  Gary J. Yerman, New York, NY.
26
27   FOR RESPONDENT:                  Joseph H. Hunt, Assistant
28                                    Attorney General; Anthony P.
1                                      Nicastro, Assistant Director;
2                                      Joanna L. Watson, Trial Attorney,
3                                      Office of Immigration Litigation,
4                                      United States Department of
5                                      Justice, Washington, DC.
6
7          UPON DUE CONSIDERATION of this petition for review of a

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

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

10   is DENIED.

11         Petitioner   Aboubacry       Ba,   a     native    and   citizen   of

12   Mauritania, seeks review of an April 10, 2018, decision of

13   the   BIA    affirming    an   April     24,    2017,    decision   of   an

14   Immigration    Judge     (“IJ”)    denying     asylum,    withholding    of

15   removal, and relief under the Convention Against Torture

16   (“CAT”).     In re Aboubacry Ba, No. A206 280 434 (B.I.A. Apr.

17   10, 2018), aff’g No. A206 280 434 (Immig. Ct. N.Y. City Apr.

18   24, 2017).      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 IJ’s decision as modified by the BIA and do not reach the

22   IJ’s alternative corroboration finding that the BIA did not

23   review.     See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

24   520, 522 (2d Cir. 2005).



                                          2
1    Adverse Credibility

2          We review the agency’s adverse credibility determination

3    for substantial evidence.         See 8 U.S.C. § 1252(b)(4)(B); Hong

4    Fei   Gao   v.   Sessions,   891    F.3d   67,    76    (2d   Cir.    2018).

5    “Considering     the   totality     of   the   circumstances,        and   all

6    relevant factors, a trier of fact may base a credibility

7    determination on the . . . consistency between the applicant’s

8    . . . written and oral statements . . . , the internal

9    consistency of each such statement, [and] the consistency of

10   such statements with other evidence of record . . . without

11   regard to whether an inconsistency, inaccuracy, or falsehood

12   goes to the heart of the applicant’s claim, or any other

13   relevant factor.”       8 U.S.C. § 1158(b)(1)(B)(iii).          “We defer

14   . . . to an IJ’s credibility determination unless, from the

15   totality of the circumstances, it is plain that no reasonable

16   fact-finder could make such an adverse credibility ruling.”

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

18   accord Hong Fei Gao, 891 F.3d at 76.           The adverse credibility

19   determination is supported by substantial evidence.

20         The   agency     reasonably    relied      on    Ba’s   inconsistent

21   statements about his alleged past persecution.                See 8 U.S.C.

22   § 1158(b)(1)(B)(iii).        The record reflects inconsistencies

                                          3
1    in his testimony, asylum interview, and application about

2    (1) when he was interrogated during his first detention;

3    (2) whether and where he was interrogated during his second

4    detention; and (3) whether he was interrogated during his

5    third detention.1     The agency also properly relied on Ba’s

6    failure to mention in his asylum statement that the police

7    kicked him in the neck, causing lasting injuries, and that

8    his   family    was   under   surveillance   by    the   Mauritanian

9    government.      See Xiu Xia Lin, 534 F.3d at 166-67 & n.3

10   (allowing     reliance   on   omissions).     Ba   did   not   offer

11   compelling     explanations     for   the    inconsistencies    and

12   omissions.     See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.

13   2005) (“A petitioner must do more than offer a plausible

14   explanation for his inconsistent statements to secure relief;

15   he must demonstrate that a reasonable fact-finder would be

16   compelled to credit his testimony.” (internal quotation marks



     1We do not rely on the agency’s finding that Ba’s testimony that
     he was deprived of “normal food” was inconsistent with a prior
     statement that he was starved. See Gurung v. Barr, No. 16-3883,
     2019 WL 2909158, at *3 (2d Cir. July 8, 2019) (“[T]rivial
     differences in the wording of statements describing the same event
     are not sufficient to create inconsistencies . . . especially []
     where an immigrant applicant is relying on an interpreter to convey
     his story.”).    We do not remand, however, because the other
     inconsistencies and omissions provide substantial evidence for the
     adverse credibility determination. See id. at *4.

                                       4
1    omitted)).

2        Although the agency may err in relying too heavily on

3    minor omissions at least where the information supplemented,

4    rather than contradicted, earlier statements, the agency did

5    not err here because these omissions were significant.           For

6    example, Ba omitted his neck injury from his application, but

7    included less substantial ailments—stomach pain and diarrhea–

8    and emphasized the severity of his neck injury more than once

9    during   his   hearing.   Ba   also    omitted   allegedly   ongoing

10   surveillance of his family from his application despite that

11   being his only evidence of future harm.      Because of the nature

12   of the omission, the IJ did not err in finding that they

13   undermined Ba’s credibility.        See Hong Fei Gao, 891 F.3d at

14   78 (holding that “the probative value of a witness’s prior

15   silence on particular facts depends on whether those facts

16   are ones the witness would reasonably have been expected to

17   disclose”); see also Ming Zhang v. Holder, 585 F.3d 715, 726

18   (2d Cir. 2009) (holding that the agency may “draw an adverse

19   inference about petitioner’s credibility based, inter alia,

20   on h[is] failure to mention” important details or events in

21   prior statements).

22       Given the multiple inconsistencies and omissions, the

                                     5
1    adverse credibility determination is supported by substantial

2    evidence.     See Xiu Xia Lin, 534 F.3d at 165-66.                That

3    determination    is    dispositive   of   asylum,   withholding    of

4    removal, and CAT relief because all three claims are based on

5    the same factual predicate.      See Paul v. Gonzales, 444 F.3d

6    148, 156-57 (2d Cir. 2006).

7    Filing Deadline

8        Ba argues that the IJ deprived him of due process when

9    he refused to consider BA’s late-filed evidence.        Because on

10   appeal to the BIA, Ba generally challenged the IJ’s refusal

11   to accept his evidence, we conclude that he sufficiently

12   exhausted this claim.      See Gill v. INS, 420 F.3d 82, 87 (2d

13   Cir. 2005).     Regardless of how Ba’s argument is construed,

14   the IJ neither abused his discretion nor deprived Ba of due

15   process when he departed from the immigration court practice

16   manual’s rule by setting his own filing deadline and rejecting

17   Ba’s untimely submission of evidence.

18       We review “an IJ’s decision to establish and enforce

19   filing deadlines for submission of documents” under the abuse

20   of discretion standard.      Dedji v. Mukasey, 525 F.3d 187, 191

21   (2d Cir. 2008).       “An IJ’s decision constitutes error or an

22   abuse of discretion when (1) his decision rests on an error

                                      6
1    of law (such as application of the wrong legal principle) or

2    a clearly erroneous factual finding or (2) his decision . .

3    .     cannot       be   located      within    the    range        of    permissible

4    decisions.”             Id.     at   191-92    (internal          quotation   marks

5    omitted).          “An IJ has broad discretion to set and extend

6    filing deadlines.”             Dedji, 525 F.3d at 191; see also 8 C.F.R.

7    § 1003.31(c).           “If an application or document is not filed

8    within the time set by the [IJ], the opportunity to file that

9    application or document shall be deemed waived.”                           8 C.F.R.

10   § 1003.31(c).             The    immigration        court    practice      manual’s

11   default rule that filings are due fifteen days in advance of

12   a final hearing only controls “unless otherwise specified by

13   the”    IJ.        Immigration       Court    Practice       Manual,      Chapter   3

14   § 3.1(b),                     (b)(ii)(A),                 available                 at

15   https://www.justice.gov/eoir/page/file/1084851/download.

16   Given       this    broad      authority,     the    IJ     did    not    abuse   his

17   discretion in denying Ba’s late-filed evidence.                          See Dedji,

18   525 F.3d at 191.

19          Similarly, Ba did not state a due process claim.                             To

20   succeed on such a claim, he had to show “that []he was denied

21   a full and fair opportunity to present h[is] claims” or “that

22   the    IJ     or    BIA   otherwise     deprived       h[im]       of    fundamental

                                               7
1    fairness,” Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d

2    144, 155 (2d Cir. 2006), and he had to “allege some cognizable

3    prejudice fairly attributable to the challenged process.”

4    Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008)

5    (internal quotation marks omitted).      We review due process

6    claims de novo.     See Burger v. Gonzales, 498 F.3d 131, 134

7    (2d Cir. 2007).

8           The IJ’s decision not to accept any of Ba’s late filings

9    did not deny Ba “a full and fair opportunity to present h[is]

10   claims,” Xiao Ji Chen, 434 F.3d at 155, because Ba had nearly

11   three years to submit supporting documents but failed to

12   timely do so.    And Ba was not prejudiced by the IJ’s refusal

13   to accept the country conditions evidence because the IJ did

14   not find Ba incredible based on the lack of objective evidence

15   of poor prison conditions.     See Garcia-Villeda, 531 F.3d at

16   149.

17          For the foregoing reasons, the petition for review is

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

19   that the Court previously granted in this petition is VACATED,

20   and any pending motion for a stay of removal in this petition

21   is DISMISSED as moot.    Any pending request for oral argument

22   in this petition is DENIED in accordance with Federal Rule of

                                     8
1   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

2   34.1(b).

3                              FOR THE COURT:
4                              Catherine O’Hagan Wolfe
5                              Clerk of Court
6




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