         07-5775-ag
         Djigo v. Holder
                                                                                        BIA
                                                                                   Weisel, IJ
                                                                                 A73 677 556
                                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 16 th day of February, two thousand ten.
 5
 6       PRESENT:
 7                 JON O. NEWMAN,
 8                 ROSEMARY S. POOLER,
 9                 DEBRA ANN LIVINGSTON,
10                              Circuit Judges.
11       _______________________________________
12
13       ABDOUL AZIZ DJIGO,
14                Petitioner,
15
16                         v.                                   07-5775-ag
17                                                              NAC
18       ERIC H. HOLDER JR., ATTORNEY GENERAL, 1
19                Respondent.
20       _______________________________________
21
22       FOR PETITIONER:                 Ronald Salomon, New York, New York.
23
24       FOR RESPONDENT:                 Gregory G. Katsas, Assistant Attorney
25                                       General, Leslie McKay, Senior
26                                       Litigation Counsel, Lindsay B.
27                                       Glauner, Trial Attorney, Office of
28                                       Immigration Litigation, Civil
29                                       Division, United States Department of
30                                       Justice, Washington, D.C.


                       1
                  Pursuant to Federal Rule of Appellate Procedure
             43(c)(2), Attorney General Eric H. Holder Jr. is
             automatically substituted for former Attorney General
             Michael B. Mukasey as respondent in this case.
1        UPON DUE CONSIDERATION of this petition for review of a

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

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

4    review is DENIED.

5        Petitioner Abdoul Aziz Djigo, a native and citizen of

6    Mauritania, seeks review of a November 29, 2007 order of the

7    BIA affirming the October 24, 2005 decision of Immigration

8    Judge (“IJ”) Robert Weisel, denying his applications for

9    asylum, withholding of removal, and relief under the

10   Convention Against Torture (“CAT”).   In re Abdoul Aziz

11   Djigo, No. A73 677 556 (B.I.A. Nov. 29, 2007), aff’g No. A73

12   677 556 (Immig. Ct. N.Y. City Oct. 24, 2005).   We assume the

13   parties’ familiarity with the underlying facts and

14   procedural history of the case.

15       When the BIA summarily affirms the decision of the IJ

16   without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), we

17   review the IJ’s decision as the final agency determination.

18   See Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008).

19   We review the agency’s factual findings, including adverse

20   credibility determinations, under the substantial evidence

21   standard.   See 8 U.S.C. § 1252(b)(4)(B); see also Corovic v.

22   Mukasey, 519 F.3d 90, 95 (2d Cir. 2008).


                                    2
1         An IJ’s adverse credibility determination must be “based

2    on specific, cogent reasons bearing a legitimate nexus to

3    the determination.”    Belortaja v. Gonzales, 484 F.3d 619,

4    626 (2d Cir. 2007).    The agency may properly base an adverse

5    credibility determination on inconsistencies that “to the

6    heart” of the applicant’s claim for relief.    See Xu Duan

7    Dong v. Ashcroft, 406 F.3d 110, 112 (2d Cir. 2005)    (quoting

8    Ramsameachire v. Ashcroft, 357 F.3d 169, 182 (2d Cir.

9    2008)).

10        Here, the IJ primarily based the adverse credibility

11   finding on two inconsistencies: (1) the inconsistency

12   between Djigo’s testimony that he was beaten and detained in

13   1991 and his concession to testifying at an earlier hearing

14   that the incident occurred in 1989, as was also alleged in

15   his asylum application; and (2) the inconsistency between

16   Djigo’s claim that he was beaten and detained for his

17   membership in the African Liberation Forces of Mauritania

18   (FLAM), and his admission before the IJ that he was not a

19   member of FLAM. 2   The IJ’s findings had a “legitimate nexus”


               2
             Djigo challenges the IJ’s adverse credibility
       finding in his brief to this Court, but did not do so
       before the BIA. We nonetheless address the adverse
       credibility determination because the government does not
       argue that the issue is unexhausted. See Lin Zhong v.
       U.S. Dep't of Justice, 461 F.3d 101, 119-20 (2d Cir. 2006)
       (holding that exhaustion of issues is waived if not raised
       by the government).

                                     3
1    to Djigo’s claim for relief.    Belortaja, 484 F.3d at 626.

2    The IJ did not err in finding that discrepancies in the

3    record regarding Djigo’s membership in FLAM and the dates of

4    the sole alleged incident of persecution were central to his

5    claim.    See Xu Duan Dong, 406 F.3d at 112.   Although Djigo

6    explained that the 1989 date was a mistake for which the

7    preparer of the asylum application was responsible, the IJ

8    acted reasonably in rejecting Djigo’s explanations.     See

9    Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005).

10       Because the only evidence of a threat to Djigo’s life or

11   freedom depended upon his credibility, his failure to

12   exhaust precludes success on his claims for asylum,

13   withholding of removal, and CAT relief where all three

14   claims were based on the same factual predicate.     See Paul

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

16       For the foregoing reasons, the petition for review is

17   DENIED.
18
19
20                                  FOR THE COURT:
21                                  Catherine O’Hagan Wolfe, Clerk
22
23
24




                                     4
