         09-5184-ag
         Sengott v. Holder
                                                                                       BIA
                                                                               Van Wyke, IJ
                                                                               A098 580 851
                              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 19 th day of November, two thousand               ten.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                JOSÉ A. CABRANES,
 9                DENNY CHIN,
10                   Circuit Judges.
11       ______________________________________
12
13       MOCTAR BAIDY SENGOTT,
14                Petitioner,
15
16                           v.                                 09-5184-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., U.S. ATTORNEY
19       GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Law Offices of Malick A. Diop,
24                                     Bronx, New York
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Emily Anne Radford,
28                                     Assistant Director, Nehal H. Kamani,
29                                     Trial Attorney, Office of
 1                          Immigration Litigation, U.S.
 2                          Department of Justice, Washington
 3                          D.C.
 4
 5       UPON DUE CONSIDERATION of this petition for review of a

 6   Board of Immigration Appeals (“BIA”) decision, it is hereby

 7   ORDERED, ADJUDGED, AND DECREED that the petition for review

 8   is DENIED in part and DISMISSED in part.

 9       Petitioner Moctar Baidy Sengott, an alleged native and

10   citizen of Mauritania, seeks review of the November 17,

11   2009, decision of the BIA affirming the January 14, 2008,

12   decision of Immigration Judge (“IJ”) William P. Van Wyke

13   pretermitting his application for asylum, and denying his

14   applications for withholding of removal and relief under the

15   Convention Against Torture (“CAT”).       In re Moctar Baidy

16   Sengott, No. A098 580 851 (B.I.A. Nov. 17, 2009), aff’g No.

17   A098 580 851 (Immig. Ct. N.Y. City Jan. 14, 2008).       We

18   assume the parties’ familiarity with the underlying facts

19   and procedural history in this case.

20       Under the circumstances of this case, we review both

21   the IJ’s and the BIA’s decisions.       See Zaman v. Mukasey, 514

22   F.3d 233, 237 (2d Cir. 2008).       The applicable standards of

23   review are well-established.    See 8 U.S.C. § 1252(b)(4)(B);

24   Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).          We


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 1   review only the agency’s denial of Sengott’s applications

 2   for withholding of removal and CAT relief because he waives

 3   any challenge to the agency’s pretermission of his asylum

 4   application as untimely.     See Yueqing Zhang v. Gonzales, 426

 5   F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).

 6       With respect to Sengott’s application for withholding

 7   of removal, substantial evidence supports the IJ’s adverse

 8   credibility determination.     While Sengott claims that the

 9   agency improperly relied on minor inconsistencies, the

10   agency reasonably found that Sengott’s contradictory

11   testimony and failure, though given multiple opportunities,

12   to establish his location during the six years after he and

13   his family purportedly were forcibly deported from

14   Mauritania constituted substantial discrepancies going to

15   the heart of Sengott’s claim.       See Secaida-Rosales v. INS,

16   331 F.3d 297, 307 (2d Cir. 2003).       Moreover, the agency did

17   not err in concluding that these discrepancies in

18   conjunction with other inconsistencies such as those related

19   to whether Sengott’s brother’s arm was broken, whether

20   soldiers accused Sengott of not being Mauritanian, and

21   whether his family was beaten and whipped by a rival ethnic

22   group, cumulatively supported an adverse credibility



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 1   determination.   See Tu Lin v. Gonzales, 446 F.3d 395, 402

 2   (2d Cir. 2006) (emphasizing that “even where an IJ relies on

 3   discrepancies or lacunae that, if taken separately, concern

 4   matters collateral or ancillary to the claim, ... the

 5   cumulative effect may nevertheless be deemed consequential

 6   by the fact-finder”).

 7       Accordingly, because the agency’s adverse credibility

 8   determination was supported by substantial evidence, it did

 9   not err in denying Sengott’s application for withholding of

10   removal.   See id. at 402-03.   Further, the agency did not

11   err in finding that Sengott failed to credibly establish his

12   eligibility for protection under the CAT because that claim

13   was based on the same factual predicate as his claim for

14   withholding of removal.   See Xue Hong Yang v. U.S. Dep’t of

15   Justice, 426 F.3d 520, 523 (2d Cir. 2005).

16       Finally, we lack jurisdiction to consider Sengott’s

17   ineffective assistance of counsel claim because it was not

18   presented to the BIA, and we dismiss the petition for review

19   to that extent. See 8 U.S.C. § 1252(d)(1).

20       For the foregoing reasons, the petition for review is

21   DENIED in part and DISMISSED in part.    As we have completed

22   our review, any stay of removal that the Court previously



                                     4
1   granted in this petition is VACATED, and any pending motion

2   for a stay of removal in this petition is DISMISSED as moot.

3   Any pending request for oral argument in this petition is

4   DENIED in accordance with Federal Rule of Appellate

5   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

6                              FOR THE COURT:
7                              Catherine O’Hagan Wolfe, Clerk




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