         04-2953-ag
         Sila v. Ashcroft
                                                                                       BIA
                                                                                 Ghartey, IJ
                                                                               A078 731 083
                             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 14th day of February, two thousand twelve.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                PETER W. HALL,
 9                GERARD E. LYNCH,
10                    Circuit Judges.
11       _________________________________________
12
13       ADAMA MUSSA SILA,
14                Petitioner,
15
16                          v.                                  04-2953-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,*
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Thomas V. Massucci, New York, New
24                                     York.
25


                    Pursuant to Federal Rule of Appellate Procedure
                        *

              43(c)(2), Eric H. Holder, Jr. is substituted for John
              Ashcroft as Respondent.
 1   FOR RESPONDENT:         Preet Bharara, United States
 2                           Attorney; Sue Chen, Special
 3                           Assistant United States Attorney;
 4                           Sarah S. Normand, Assistant United
 5                           States Attorney, United States
 6                           Attorney’s Office for the Southern
 7                           District of New York, New York, New
 8                           York.
 9
10       UPON DUE CONSIDERATION of this petition for review of a

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

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

13   is DENIED.

14       Adama Mussa Sila, a native and citizen of Guinea-

15   Bissau, seeks review of a May 4, 2004, order of the BIA

16   affirming the December 31, 2002, decision of Immigration

17   Judge (“IJ”) Victoria Ghartey, which denied his applications

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

19   Convention Against Torture (“CAT”).   In re Adama Mussa Sila,

20   No. A078 731 083 (B.I.A. May 4, 2004), aff’g No. A078 731

21   083 (Immig. Ct. N.Y. City Dec. 31, 2002).   We assume the

22   parties’ familiarity with the underlying facts and

23   procedural history in this case.

24       Under the circumstances of this case, we have reviewed

25   the IJ’s decision as the final agency decision.   See Mei

26   Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 523 (2d Cir.

27   2007).   The applicable standards of review are

28   wellestablished.   See Bah v. Mukasey, 529 F.3d 99, 110 (2d

                                   2
 1   Cir. 2008); Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d Cir.

 2   2007).

 3       The agency’s adverse credibility determination is

 4   supported by substantial evidence.     In finding Sila not

 5   credible, the agency reasonably relied in part on

 6   inconsistencies among his asylum application, supporting

 7   affidavit, and hearing testimony before the IJ.     See

 8   Secaida-Rosales v. INS, 331 F.3d 297, 308-09 (2d Cir.

 9   2003).1 First, Sila’s asylum application, affidavit, and

10   testimony contained inconsistent statements regarding when

11   and how he learned of his father’s death.     When Sila was

12   asked to explain the inconsistencies between his application

13   and his testimony, he faulted the person who had prepared

14   his application and contended that his affidavit had been

15   submitted to correct the record.     Given that Sila’s

16   affidavit contained additional material deviations from his

17   testimony and further undermined his credibility, the agency

18   was not required to credit his explanation.     See Majidi v.

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



            In Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d
              1

       Cir. 2008), we recognized that the REAL ID Act abrogated
       in part the holding in Secaida-Rosales for cases filed
       after May 11, 2005, the effective date of the Act. Id.
       Because Sila’s application was filed before this date,
       Secaida-Rosales remains good law. See Zheng v. Mukasey,
       552 F.3d 277, 287 n.6 (2d Cir. 2009).
                                  3
 1   because these inconsistencies go to the heart of Sila’s

 2   claim of past persecution, i.e., his father’s death and the

 3   rape of his family members, and related to an event of major

 4   importance cited in support of his asylum application, the

 5   agency reasonably concluded that Sila’s inconsistent

 6   statements were sufficient to support an adverse credibility

 7   determination.   See Zhou Yun Zhang v. INS, 386 F.3d 66, 77

 8   (2d Cir. 2004) (noting that date inconsistencies relating to

 9   when petitioner learned of “distressing information” are

10   “not the sort of ‘minor and isolated’ discrepancies so

11   plainly immaterial” to an asylum claim), overruled on other

12   grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d

13   296 (2d Cir. 2007) (en banc).

14       The agency’s adverse credibility determination is

15   further supported by inconsistencies between Sila’s

16   affidavit and his testimony regarding whether his cousin had

17   been raped.   Despite Sila’s arguments to the contrary, this

18   inconsistency supports the agency’s adverse credibility

19   finding because, as noted above, the discrepancy goes to the

20   heart of Sila’s claim of past persecution.   See Chen Yun Gao

21   v. Ashcroft, 299 F.3d 266, 272 (2d Cir. 2002) (holding that

22   an IJ may base an adverse credibility determination on

23   discrepancies that go to the “heart of the asylum claim”).


                                     4
 1       Ultimately, given the inconsistent statements Sila

 2   provided regarding his father’s death and the rape of his

 3   cousin, the agency’s adverse credibility determination was

 4   supported by substantial evidence.    See Shu Wen Sun, 510

 5   F.3d at 379-80.   Since the only evidence of a threat to

 6   Sila’s life or freedom depended upon his credibility, the

 7   agency’s adverse credibility determination was a proper

 8   basis for the denial of asylum, withholding of removal, and

 9   CAT relief.   See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d

10   Cir. 2006).

11       For the foregoing reasons, the petition for review is

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

13   removal that the Court previously granted in this petition

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

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

16   oral argument in this petition is DENIED in accordance with

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

18   Circuit Local Rule 34.1(b).

19                                 FOR THE COURT:
20                                 Catherine O’Hagan Wolfe, Clerk
21
22




                                    5
