     18-983
     Ismail v. Barr


                                                                                   BIA
                                                                              Straus, IJ
                                                                          A206 514 530
                           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 16th day of January, two thousand twenty.
 5
 6   PRESENT:
 7            BARRINGTON D. PARKER,
 8            MICHAEL H. PARK,
 9                 Circuit Judges.1
10   _____________________________________
11
12   ABDUL F. ISMAIL
13            Petitioner,
14
15                    v.                                         18-983
16                                                               NAC
17   WILLIAM P. BARR, UNITED STATES
18   ATTORNEY GENERAL,
19            Respondent.
20   _____________________________________
21
22
23   FOR PETITIONER:                  Megan E. Kludt, Northampton, MA.
24
25

     1 Judge Christopher F. Droney, who was originally assigned to the panel,
     retired from the Court, effective January 1, 2020, prior to the resolution of
     this case. The remaining two members of the panel, who are in agreement,
     have determined the matter. See 28 U.S.C. § 46(d); 2d Cir. IOP E(b); United
     States v. Desimone, 140 F.3d 457, 458–59 (2d Cir. 1998).
1    FOR RESPONDENT:               Joseph H. Hunt, Assistant Attorney
2                                  General; Jeffery R. Leist, Senior
3                                  Litigation Counsel; Yedidya Cohen,
4                                  Trial Attorney, Office of
5                                  Immigration Litigation, United
6                                  States Department of Justice,
7                                  Washington, DC.

8        UPON DUE CONSIDERATION of this petition for review of a

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

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

11   is DENIED in part and DISMISSED in part.

12       Petitioner Abdul F. Ismail, a native and citizen of

13   Ghana, seeks review of a March 29, 2018, decision of the BIA

14   affirming an October 4, 2017, decision of an Immigration Judge

15   (“IJ”) denying Ismail’s application for asylum, withholding

16   of removal, and relief under the Convention Against Torture

17   (“CAT”) and denying his motion to continue his proceedings to

18   await   a   decision   from   U.S.       Citizenship   and   Immigration

19   Services (“USCIS”).     In re Abdul F. Ismail, No. A 206 514 530

20   (B.I.A. Mar. 29, 2019), aff’g No. A 206 514 530 (Immig. Ct.

21   Hartford Oct. 4, 2017).       We assume the parties’ familiarity

22   with the underlying facts and procedural history in this case.

23

24


                                          2
1    Asylum, Withholding of Removal, and CAT

2        Under the circumstances of this case, we have reviewed

3    both the BIA’s and IJ’s decisions.        See Yun-Zui Guan v.

4    Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).    The applicable

5    standards of review are well established.        See 8 U.S.C.

6    § 1252(b)(4); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d

7    Cir. 2018); Chuilu Liu v. Holder, 575 F.3d 193, 196 (2d Cir.

8    2009).   Ismail claimed that he was targeted in Ghana because

9    he was perceived as gay and that he would be targeted again

10   if he returned.

11       The agency did not err in finding that Ismail failed to

12   meet his burden of proof.

13       The testimony of the applicant may be sufficient to
14       sustain    the     applicant’s    burden     without
15       corroboration, but only if the applicant satisfies
16       the trier of fact that the applicant’s testimony is
17       credible, is persuasive, and refers to specific
18       facts sufficient to demonstrate that the applicant
19       is a refugee. In determining whether the applicant
20       has met the applicant’s burden, the trier of fact
21       may weigh the credible testimony along with other
22       evidence of record. Where the trier of fact
23       determines that the applicant should provide
24       evidence that corroborates otherwise credible
25       testimony, such evidence must be provided unless the
26       applicant does not have the evidence and cannot
27       reasonably obtain the evidence.
28
29   8 U.S.C. § 1158(b)(1)(B)(ii); see also Chuilu Liu, 575 F.3d


                                   3
1    at 196–98.     The IJ need not specify the points of testimony

2    that require corroboration prior to the IJ’s disposition of

3    the claim because “the alien bears the ultimate burden of

4    introducing such evidence without prompting from the IJ.”

5    Chuilu Liu, 575 F.3d at 198.           “No court shall reverse a

6    determination made by a trier of fact with respect to the

7    availability of corroborating evidence . . . unless the court

8    finds . . . that a reasonable trier of fact is compelled to

9    conclude that such corroborating evidence is unavailable.”

10   8 U.S.C. § 1252(b)(4).

11       The   IJ   reasonably   required    corroboration    given    that

12   Ismail admitted he lied under oath to immigration officials

13   both during his visa interview in 2011 and to border officials

14   when he came to the United States in 2013.              See 8 U.S.C.

15   § 1158(b)(1)(B)(iii)    (IJ   may   rely   on   falsehoods   in    any

16   statement “without regard to whether . . . [it] goes to the

17   heart of the applicant’s claim”); id. § 1158(b)(1)(B)(ii)

18   (requiring IJ to weigh testimony and corroborating evidence).

19   Ismail attempted to obtain a visa in 2011 by falsely claiming

20   that he was enrolled in college in Ghana and was part of a

21   student-exchange program.      And when he entered the United


                                     4
1    States in 2013, he told border officials that he came to the

2    United States by boat when, in fact, he flew from Ghana to

3    Mexico City.    The agency was not required to accept Ismail’s

4    explanation that he was scared of having to return to Ghana,

5    because he did not explain why he believed he would be sent

6    back if he told the truth regarding his travel.         See Majidi

7    v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner

8    must do more than offer a plausible explanation for . . .

9    inconsistent statements to secure relief; he must demonstrate

10   that a reasonable fact-finder would be compelled to credit

11   his testimony.” (internal quotations omitted)).       While making

12   false statements to flee persecution is consistent with the

13   pursuit of asylum, see Rui Ying Lin v. Gonzales, 445 F.3d

14   127, 134 (2d Cir. 2006), the agency did not err in relying on

15   these   false   statements   because   Ismail   was   not   fleeing

16   persecution when he lied to obtain a visa years before the

17   events giving rise to his asylum claim and he lied to border

18   officials after he arrived in the United States.

19       Because Ismail’s credibility was in question, the agency

20   properly looked to his corroborating evidence to determine

21   whether he could meet his burden of proof.            See 8 U.S.C.


                                     5
1    § 1158(b)(1)(B)(ii).   Primarily, Ismail produced only copies

2    of documents and stated that his friend who was applying for

3    asylum in New York had the originals, including the original

4    of Ismail’s mother’s affidavit and her death certificate that

5    allegedly proved she died a few years after the 2013 attack

6    as a result of her injuries.   The IJ did not err in requiring

7    originals.   See Immigration Court Practice Manual, Chapt.

8    3.3(d)(iii) (providing that alien must file photocopies, but

9    must make original documents available at hearings).   Nor did

10   the IJ err in finding that Ismail should have presented

11   testimony or a statement his friend who had been at the heart

12   of the events in Ghana.     Although Ismail stated that his

13   friend’s lawyer had advised him not to appear as a witness,

14   Ismail did not explain why he had not obtained the originals

15   of the documents or a written statement.        See 8 U.S.C.

16   § 1252(b)(4) (stating that a court may not reverse a finding

17   that evidence is available unless a factfinder would be

18   compelled to find it unavailable).

19       Nor did the IJ err in declining to give weight to the

20   photocopies of documents in the record.   See Y.C. v. Holder,

21   741 F.3d 324, 332 (2d Cir. 2013) (“We generally defer to the


                                    6
1    agency’s   evaluation   of   the       weight     to   be   afforded   an

2    applicant’s documentary evidence.”).            The IJ reasonably found

3    that Ismail’s mother’s death certificate was suspect because

4    it listed the cause of death as “severe hand injury and broken

5    legs due to attack” but Ismail’s mother died four years after

6    the attack.    The IJ was not required to credit Ismail’s

7    explanation that his mother died from an infection due to the

8    injuries she sustained because there is nothing in the record

9    to confirm that statement, and other medical documents dated

10   2013 reflect that she had a leg fracture and a broken arm,

11   but “got treated and became fit.”                Although “the agency

12   cannot base an adverse credibility determination solely on a

13   speculative   finding   that   the       applicant      has    submitted

14   inauthentic documents in support of his application” if the

15   testimony is “otherwise credible, consistent and compelling,”

16   Niang v. Mukasey, 511 F.3d 138, 141 (2d Cir. 2007), the IJ

17   did not err in declining to credit Ismail’s evidence given

18   the credibility problems and lack of original documents.

19   Because Ismail did not demonstrate credibility or otherwise

20   meet his burden of proof for asylum, he necessarily did not

21   meet his burden for withholding of removal and CAT relief


                                        7
1    because all three forms of relief were based on the same

2    factual predicate.   See Paul v. Gonzales, 444 F.3d 148, 156-

3    57 (2d Cir. 2006).

4    Motion for a Continuance

5        Ismail challenges the agency’s denial of his motion to

6    continue proceedings to await ruling on adjustment of

7    status by USCIS.   After the conclusion of Ismail’s removal

8    proceedings, USCIS denied Ismail’s application.

9    Accordingly, we agree with the government that any

10   challenge to the denial of a continuance is moot.    See

11   Qureshi v. Gonzales, 442 F.3d 985, 987-90 (7th Cir. 2006)

12   (“A remand now would effectuate no change in the case

13   [because the] basis for a continuance no longer exists.”);

14   see also Church of Scientology of California v. United

15   States, 506 U.S. 9, 12 (1992) (“[I]f an event occurs while

16   a case is pending on appeal that makes it impossible for

17   the court to grant any effectual relief whatever to a

18   prevailing party, the appeal must be dismissed.” (internal

19   quotation marks omitted)).

20       For the foregoing reasons, the petition for review is

21   DENIED as to asylum, withholding of removal, and CAT relief,


                                   8
1   and DISMISSED as moot as to the denial of a continuance.        All

2   pending    motions   and   applications   are   DENIED   and   stays

3   VACATED.

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




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