10-3589-ag
Boveri v. Holder
                                                                                 BIA
                                                                           Strauss, IJ
                                                                        A095 872 200


                    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.

     At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 26th day of April, two thousand twelve.

PRESENT:
         ROSEMARY S. POOLER,
         PETER W. HALL,
         GERARD E. LYNCH,
              Circuit Judges.
_______________________________________

JACQUES BOUTELEZI BOVERI, a.k.a.
LUMBASI LUBENDA KUTOMA,
         Petitioner,

                   v.                                   10-3589-ag
                                                        NAC
ERIC H. HOLDER, JR., U.S. ATTORNEY
GENERAL,
         Respondent.
______________________________________
FOR PETITIONER:          Alexander Lumelsky, Farmington, CT.

FOR RESPONDENT:          Tony West, Assistant Attorney General;
                         Michelle G. Latour, Assistant Director;
                         Michele Y. F. Sarko, Attorney, Office of
                         Immigration Litigation, Washington D.C.
      UPON DUE CONSIDERATION of this petition for review of a

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

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

DENIED.

      Petitioner Jacques Boutelezi Boveri, an alleged native

and citizen of the Democratic Republic of Congo (“DRC”), seeks

review of the August 6, 2010, order of the BIA affirming the

April 5, 2004, decision of Immigration Judge (“IJ”) Michael W.

Strauss pretermitting his application for asylum and denying

his application for withholding of removal and relief under

the   Convention   Against   Torture    (“CAT”).   In   re   Jacques

Boutelezi Boveri, No. A095 872 200 (B.I.A. Aug. 6, 2010),

aff’g No. A095 872 200 (Immig. Ct. Hartford, CT April 5,

2004). We assume the parties’ familiarity with the underlying

facts and procedural history in this case.

      “When the BIA agrees with the IJ’s conclusion that an

asylum applicant is not credible and emphasizes particular

aspects of the IJ’s decisions, we review both the BIA’s and

the IJ’s opinions.”    Ming Xia Chen v. BIA, 435 F.3d 141, 144

(2d Cir. 2006).    We review the factual findings of the BIA and

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

Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).


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     The   agency’s     adverse    credibility             determination    was

supported by substantial evidence.             In his brief, Boveri does

not challenge the BIA’s findings that: (1) his appearance is

not that of a typical Tutsi; and (2) his explanation that he

was unaware of the danger to Tutsis in November 1998 was

implausible based on country conditions at that time;

(3) his assertion that Tutsis in the DRC do not speak a

particular   language     was    contradicted         by    country   reports.

Accordingly, those findings stand as valid bases for the IJ’s

adverse credibility determination.             See Shunfu Li v. Mukasey,

529 F.3d 141, 146 (2d Cir. 2008).

     With respect to the findings that Boveri does challenge,

each was proper.        The BIA’s finding that Boveri failed to

adequately establish his identity because he did not provide

an original Congolese birth certificate, and the copy he

provided indicated that it was issued in Kinshasa even though

he   testified   that    his    wife       obtained   the     certificate   in

Lubumbashi, was reasonable, and the BIA was not compelled to

accept Boveri’s explanation that “perhaps” he had the original

at home and that “they [are] going to stamp [the certificate]

to say that it’s from Kinshasa . . . [b]ut everything is done

in Lubumbashi.”    See Majidi v. Gonzales, 430 F.3d 77, 80-81


                                       3
(2d Cir. 2005).          Regarding the BIA’s finding that it was

implausible that Boveri’s Tutsi wife could have obtained a

birth certificate for him in Kinshasa during the height of the

civil war, he again states that his wife actually obtained the

certificate in Lubumbashi.           However, as noted above, the BIA

was not compelled to accept that explanation in light of the

fact that the certificate itself indicated that it was issued

in Kinshasa.    See id. at 80-81.           With respect to Boveri’s use

of Zambian identity documents, even if we were to credit

Boveri’s explanation that he obtained his Zambian passport

through “the gentlemen [he] was working for” in Zambia, he

failed to explain where he obtained an original copy of a

Zambian birth certificate. In any event, in light of Boveri’s

use of genuine Zambian identity documents, the IJ was not

required to accept Boveri’s testimony that he was in fact not

Zambian, but rather Congolese.

    Contrary        to   Boveri’s    assertion,          each   of    the   above

findings     questioning     the     validity      of    his    identification

documents went to the heart of his claim that he feared

persecution as a Congolese Tutsi.                  See Borovikova v. U.S.

Dep’t   of    Justice,     435      F.3d    151,    158     (2d      Cir.   2006)

(applicant’s    failure      to    establish       his    identity     is   alone

sufficient     to    support      adverse    credibility          determination

warranting denial of relief).

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      Because Boveri’s claims for withholding of removal and

CAT relief were based on the same factual predicate, the BIA

did   not   err   in   denying   both   claims   based   on   the   IJ’s

underlying adverse credibility determination.            See Xue Hong

Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.

2005).

      For the foregoing reasons, the petition for review is

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

that the Court previously granted in this petition is VACATED,

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

is DISMISSED as moot.

                                 FOR THE COURT:
                                 Catherine O’Hagan Wolfe, Clerk




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