09-5017-ag
Sow v. Holder
                                                                                BIA
                                                                          Elstein, IJ
                                                                       A098 587 051
                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 7 th day of September, two thousand ten.

PRESENT:
         JON O. NEWMAN,
         JOSÉ A. CABRANES,
         DENNY CHIN,
             Circuit Judges.
_______________________________________

MAMADOU SOW,
         Petitioner,

                  v.                                               09-5017-ag
                                                                          NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
         Respondent.
_______________________________________

FOR PETITIONER:                Ronald S. Salomon, New York, New York.

FOR RESPONDENT:                Tony West, Assistant Attorney General;
                               John   S.    Hogan,  Senior   Litigation
                               Counsel; Channah M. Farber, Attorney,
                               Office    of   Immigration   Litigation,
                               Civil     Division,     United    States
                               Department of Justice, Washington,
                               D.C.
      UPON DUE CONSIDERATION of this petition for review of a

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

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

review is DENIED.

      Petitioner Mamadou Sow, a native and citizen of Guinea,

seeks review of a November 4, 2009, order of the BIA, affirming

the   March   10,   2008,    decision     of    Immigration    Judge     (“IJ”)

Annette S. Elstein, pretermitting his asylum application and

denying his application for withholding of removal and relief

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

Sow, No. A098 587 051 (B.I.A. Nov. 4, 2009), aff’g No. A098 587

051 (Immig. Ct. N.Y. City Mar. 10, 2008).                     We    assume the

parties’ familiarity with the underlying facts and procedural

history of the case.

      Under the circumstances of this case, we review both the

IJ’s and the BIA’s decisions.           See Yun-Zui Guan v. Gonzales,

432 F.3d 391, 394 (2d Cir. 2005).              The applicable standards of

review are well-established.            See 8 U.S.C. § 1252(b)(4)(B);

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

      As an initial matter, Sow concedes that this Court is

without jurisdiction to consider the IJ’s pretermission of his

asylum application.         See 8 U.S.C. § 1158(a)(3).             We therefore


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review   only    his    challenge    to     the      agency’s   denial   of   his

application for withholding of removal and CAT relief.

     Substantial evidence supports the IJ’s adverse credibility

determination. 1       The IJ found that: (1) although Sow testified

that he was not injured when soldiers came to his home in 1998,

he stated in his asylum application that the soldiers beat him

“nearly to death”; (2) although Sow testified that, during his

alleged detention, prison guards interrogated him only once and

did not harm him, his wife’s letter and his asylum application

both stated that the guards threatened, beat, interrogated, and

tortured   him;    and    (3)    although      Sow    testified   that   he   was

imprisoned      from     March    2003    to      March   2004,    his   asylum

application indicated that he was imprisoned from September

2003 to March 2004.        Although minor and isolated discrepancies

may be insufficient to support an adverse credibility finding,

see Diallo v. INS, 232 F.3d 279, 285-86 (2d Cir. 2000), the

multiple discrepancies here were not isolated, and related to

events at the heart of Sow’s claim – that he suffered past

persecution     and     feared    future       persecution      based    on   his


     1
     Because Sow filed his asylum application before May 11,
2005, the amendments made to the Immigration and Nationality
Act by the REAL ID Act of 2005 do not apply to his asylum
application. See Pub. L. No. 109-13, § 101(h)(2), 119 Stat.
231, 305 (2005).

                                     -3-
membership in the Rally for the People of Guinea.

     The IJ also reasonably found Sow’s testimony implausible,

as he testified that, although he was not in contact with his

wife while he was imprisoned from March 2003 to March 2004, his

wife was pregnant for eleven months before she gave birth to

his child in February 2004.     Given the inherent implausibility

of that testimony, the IJ reasonably relied on this finding as

further support for the adverse credibility determination. See

Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007) (holding

that “[an IJ’s speculation] is not ‘bald’ if the inference is

made available to the factfinder by record facts, or even a

single fact, viewed in the light of common sense and ordinary

experience”).

     Furthermore,    contrary   to   Sow’s   position,    a     reasonable

fact-finder would not be compelled to conclude that the agency

ignored any of the evidence that he submitted.                Indeed, the

agency is not required to “expressly parse or refute on the

record each individual argument or piece of evidence offered

by   the   petitioner”   as   long     as   it   “has   given     reasoned

consideration to the petition, and made adequate findings.”

See Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006);

see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,

337 n.17    (2d   Cir. 2006).    Here, both the BIA and the IJ

                                 -4-
considered Sow’s evidence in some detail and found him not

credible.

         Accordingly, substantial evidence supports the agency’s

adverse credibility determination.            See Zhou Yun Zhang v. INS,

386 F.3d 66, 74 (2d Cir. 2004), overruled in part on other

grounds by Shi Liang Lin v. U.S. Dept. of Justice, 494 F.3d

296, 305 (2d Cir. 2007) (en banc).             Because the only evidence

of   a    threat   to   Sow’s   life    or   freedom   depended   upon   his

credibility, the adverse credibility determination in this case

necessarily precludes success on his claim for withholding of

removal and CAT relief.         See Paul v. Gonzales, 444 F.3d 148,

156 (2d Cir. 2006).

         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. Any pending request for oral argument in

this petition is DENIED in accordance with Federal Rule of

Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34.1(b).

                                   FOR THE COURT:
                                   Catherine O’Hagan Wolfe, Clerk




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