         12-863
         Diallo v. Holder
                                                                                       BIA
                                                                                 Laforest, IJ
                                                                               A098 694 899
                              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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 13th day of September, two thousand thirteen.
 5
 6       PRESENT:
 7                          JOHN M. WALKER, JR.,
 8                          DEBRA ANN LIVINGSTON,
 9                          CHRISTOPHER F. DRONEY,
10                               Circuit Judges.
11
12       _____________________________________
13
14       MOHAMED DIALLO,
15                Petitioner,
16
17                          v.                                  12-863
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:                 Genet Getachew, Brooklyn, New York.
25
26       FOR RESPONDENT:                 Stuart F. Delery, Acting Assistant
27                                       Attorney General; John S. Hogan,
28                                       Senior Litigation Counsel; Channah
29                                       M. Farber, Trial Attorney, Office of
30                                       Immigration Litigation, 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           Petitioner Mohamed Diallo, a native and citizen of

 6       Guinea, seeks review of a February 7, 2012, decision of the

 7       BIA, affirming the January 5, 2010, decision of Immigration

 8       Judge (“IJ”) Brigitte Laforest, denying Diallo’s application

 9       for asylum, withholding of removal, and relief under the

10       Convention Against Torture (“CAT”).     In re Mohamed Diallo,

11       No. A098 694 899 (B.I.A. Feb. 7, 2012), aff’g No. A098 694

12       899 (Immig. Ct. N.Y. City Jan. 5, 2010).    We assume the

13       parties’ familiarity with the underlying facts and

14       procedural history in this case.

15           Under the circumstances of this case, we have reviewed

16       both the IJ’s and the BIA’s opinions “for the sake of

17       completeness.”     Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

18       2008).   The applicable standards of review are well-

19       established.     See 8 U.S.C. § 1252(b)(4)(B); see also Shu Wen

20       Sun v. BIA, 510 F.3d 377, 379 (2d Cir. 2007).

21           Because Diallo filed his asylum application in January

22       2005, the REAL ID Act does not apply in this case.      See REAL


                                         2
 1   ID Act of 2005, Div. B of Pub. L. No. 109-13, 119 Stat. 302,

 2   303 (enacted May 11,2005) (codified at 8 U.S.C.

 3   § 1158(b)(1)(B)(iii)); Matter of S-B-, 24 I. & N. Dec. 42,

 4   43, 45 (BIA 2006).   Although not raised by Diallo, we note

 5   that the BIA incorrectly stated that the REAL ID Act applied

 6   to Diallo’s application.   Nevertheless, it would be futile

 7   to remand for the BIA to correct this misstatement because

 8   the IJ’s decision does not indicate that she applied the

 9   REAL ID Act in evaluating Diallo’s credibility and the BIA’s

10   decision simply affirmed the IJ’s decision.     See Shunfu Li

11   v. Mukasey, 529 F.3d 141, 150 (2d Cir. 2008).     Moreover, as

12   discussed herein, the IJ’s decision satisfied the pre-REAL

13   ID Act standard for adverse credibility determinations as it

14   was based on “specific, cogent reasons” that bore “a

15   legitimate nexus” to the finding, and the inconsistencies

16   identified were material to the claim raised and were

17   “substantial” when measured against the record as a whole.

18   See Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.

19   2003), superseded by the REAL ID Act as recognized in Xiu

20   Xia Lin v. Mukasey, 534 F.3d 162, 163-64 (2d Cir. 2008).

21       Indeed, the IJ’s adverse credibility determination was

22   supported by discrepancies among Diallo’s testimony, asylum


                                   3
 1   application, medical certificate, and corroborating letters

 2   regarding the detention that formed the basis of his claim.

 3   See Tu Lin v. Gonzales, 446 F.3d 395, 402-03 (2d Cir. 2006);

 4   see also Surinder Singh v. BIA, 488 F.3d 145, 148 (2d Cir.

 5   2006).    Moreover, Diallo failed to provide compelling

 6   explanations for these discrepancies.     See Majidi v.

 7   Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).

 8       Given the record discrepancies that go to the heart of

 9   Diallo’s claim, we find the IJ’s adverse credibility

10   determination supported by substantial evidence.     See Shu

11   Wen Sun, 510 F.3d at 379.    Thus, the agency did not err in

12   denying Diallo asylum, withholding of removal, and CAT

13   relief because those claims were based on the same factual

14   predicate.    See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

15   2006).

16       For the foregoing reasons, the petition for review is

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

18   removal that the Court previously granted in this petition

19   is VACATED, and any pending motion for a stay of removal in

20   this petition is DISMISSED as moot.     Any pending request for

21

22

23

                                    4
1   oral argument in this petition is DENIED in accordance with

2   Federal Rule of Appellate Procedure 34(a)(2), and Second

3   Circuit Local Rule 34.1(b).

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




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