     16-2625
     Guediara v. Sessions
                                                                                       BIA
                                                                                   Sichel, IJ
                                                                               A089 193 531
                             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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   8th day of November, two thousand seventeen.
 5
 6   PRESENT:
 7            JON O. NEWMAN,
 8            RICHARD C. WESLEY,
 9            DEBRA ANN LIVINGSTON,
10                 Circuit Judges.
11   _____________________________________
12
13   MOUSSA GUEDIARA, AKA YAYA CAMARA,
14            Petitioner,
15
16                      v.                                           16-2625
17                                                                   NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Gary J. Yerman, New York, NY.
24
25   FOR RESPONDENT:                     Chad A. Readler, Acting Assistant
26                                       Attorney    General;   Jessica    A.
27                                       Dawgert, Senior Litigation Counsel;
28                                       Yanal H. Yousef, Trial Attorney,
29                                       Office of Immigration Litigation,
30                                       United States Department of Justice,
31                                       Washington, DC.
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 is

4    DENIED.

5         Petitioner Moussa Guediara, a native and citizen of Côte

6    d’Ivoire, seeks review of a June 30, 2016, decision of the BIA

7    affirming a May 12, 2015, decision of an Immigration Judge

8    (“IJ”) denying Guediara’s application for asylum, withholding

9    of removal, and relief under the Convention Against Torture

10   (“CAT”).    In re Moussa Guediara, No. A089 193 531 (B.I.A. June

11   30, 2016), aff’g No. A089 193 531 (Immig. Ct. N.Y. City May 12,

12   2015).    We assume the parties’ familiarity with the underlying

13   facts and procedural history in this case.

14        When the BIA summarily affirms the IJ’s decision, we review

15   the IJ’s decision, as modified by the BIA, i.e., minus the

16   findings regarding timeliness and changed circumstances that

17   the BIA did not reach.        See Xue Hong Yang v. U.S. Dep’t of

18   Justice, 426 F.3d 520, 522 (2d Cir. 2005).        Petitioner raises

19   two issues on appeal: (1) whether the agency erred in relying

20   on   fingerprint   evidence    from   the   Department   of   Homeland

21   Security (“DHS”); and (2) whether substantial evidence supports

22   the agency’s determination that Guediara was not credible.
                                       2
1           I.    Admission of Fingerprint Evidence

2           “The due process test for admissibility of evidence in a

3    deportation hearing is whether the evidence is probative and

4    whether its use is fundamentally fair.”             Felzcerek v. INS, 75

5    F.3d 112, 115 (2d Cir. 1996) (internal quotation marks omitted).

6    “In the evidentiary context, fairness is closely related to the

7    reliability and trustworthiness of the evidence.”             Id.    While

8    “the strict rules of evidence do not apply in deportation

9    proceedings,” a document’s “admissibility under the Federal

10   Rules of Evidence lends strong support to the conclusion that

11   admission of the evidence comports with due process.”               Id. at

12   116.    “Records made by public officials in the ordinary course

13   of their duties . . . evidence strong indicia of reliability.

14   . . . because public officials are presumed to perform their

15   duties      properly   and   generally   lack   a    motive   to   falsify

16   information.”      Id.; see also Barradas v. Holder, 582 F.3d 754,

17   763 (7th Cir. 2009) (“[W]hen the evidence introduced is that

18   recorded by a DHS agent in a public record, the absent agent

19   cannot be presumed to be an unfriendly witness or other than

20   an accurate recorder.          Establishing an automatic right to

21   cross-examine the preparers of such documents would place an

22   unwarranted     burden   on   the   DHS.”   (internal     citations    and
                                         3
1    quotation marks omitted)).       A petitioner can overcome this

2    presumption    by    providing   evidence      that   undermines    the

3    reliability of the official records in question.           Felzcerek,

4    75 F.3d at 117.

5          The fingerprint evidence in this case—printouts from a DHS

6    database tracking the entry of aliens into the United States—are

7    official records prepared by DHS agents in the ordinary course

8    of their duties.     Because these official records are presumed

9    to be reliable, id. at 116, and Guediara did not introduce any

10   evidence calling into question their reliability (such as

11   evidence of tampering or mistake), DHS was not required to call

12   a witness to document the chain of custody or preparation of

13   the records.

14         Furthermore, DHS called a fingerprint specialist whom

15   Guediara had an opportunity to cross examine.         While Woods did

16   not have personal knowledge of the preparation or chain of

17   custody of the fingerprints, his testimony helped to establish

18   the records’ reliability by describing how he obtained the

19   fingerprints from the DHS database, confirming that the prints

20   did   not   match,   and   explaining   that    the   database     would

21   automatically consolidate matching fingerprints even if an

22   individual gave a different name.       Ultimately, it was up to the
                                       4
1    IJ to weigh the DHS evidence and Woods’s testimony against

2    Guediara’s conflicting testimony regarding his date of entry.

3    Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013) (“We defer to

4    the agency’s determination of the weight afforded to an alien’s

5    documentary evidence.”).     We find no error in the agency’s

6    admission of the DHS fingerprint evidence.

7        II.    Adverse Credibility Ruling

8        We review the agency’s credibility determination for

9    substantial evidence. Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165

10   (2d Cir. 2008); see also 8 U.S.C. § 1252(b)(4).             The agency

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

12   an adverse credibility finding on inconsistencies between an

13   asylum    applicant’s   testimony   and    other   record   evidence.

14   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.

15   Credibility rulings are “conclusive unless any reasonable

16   adjudicator would be compelled to conclude to the contrary.”

17   8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin, 534 F.3d at 165.

18       The     fingerprint    evidence    contradicting        Guediara’s

19   testimony about his date and manner of entry constitutes

20   substantial    evidence   supporting      the   adverse   credibility

21   determination.     The discrepancy about Guediara’s arrival

22   called into question when he entered the United States and
                                     5
1    whether he was in Côte d’Ivoire at the time of his alleged

2    persecution, thereby calling into question the entirety of his

3    claim.   See Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007)

4    (“[A] single false document or a single instance of false

5    testimony may (if attributable to petitioner) infect the

6    balance of the alien’s uncorroborated or unauthenticated

7    evidence.”).   Guediara’s speculation that there may have been

8    another individual named Yaya Camara who entered the United

9    States on the same day does not resolve the issue because it

10   does not account for the lack of any entry record with

11   fingerprints matching Guediara’s.   See Majidi v. Gonzales, 430

12   F.3d 77, 80-81 (2d Cir. 2005) (“A petitioner must do more than

13   offer a plausible explanation for his inconsistent statements

14   to secure relief; he must demonstrate that a reasonable

15   fact-finder would be compelled to credit his testimony.”

16   (internal quotation marks omitted)).

17       Furthermore, Guediara did not rehabilitate this testimony.

18   See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An

19   applicant’s failure to corroborate his or her testimony may bear

20   on credibility, because the absence of corroboration in general

21   makes an applicant unable to rehabilitate testimony that has

22   already been called into question.”).    While his certificate
                                    6
1    of citizenship and attestation of identity corroborated his

2    Ivorian identity, the documents did not show he was in Cote

3    d’Ivoire in 2006, when the alleged persecution occurred, or show

4    when he entered the United States.                As the IJ found, Guediara’s

5    timeline was further undermined by other documentary evidence:

6    the signature on a 2006 certificate allegedly reflecting the

7    sale of his business did not match Guediara’s signature on his

8    asylum     application;        and    Guediara       submitted     a   political

9    membership card for 2004-2005 but not for 2006-2007.

10          Given the discrepancy between Guediara’s testimony and the

11   fingerprint evidence regarding his entry date as well as the

12   lack     of    corroborating         evidence,       the   totality     of   the

13   circumstances        supports        the       adverse   credibility    ruling.

14   8 U.S.C. § 1158(b)(1)(B)(iii); Siewe, 480 F.3d at 170; Biao

15   Yang, 496 F.3d at 273.         Because Guediara’s claims were all based

16   on   the      same   factual    predicate,         the   adverse   credibility

17   determination is dispositive of asylum, withholding of removal,

18   and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d

19   Cir. 2006).

20          For the foregoing reasons, the petition for review is

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

22   that the Court previously granted in this petition is VACATED,
                                                7
1   and any pending motion for a stay of removal in this petition

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

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

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

5   34.1(b).

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




                                  8
