08-3153-ag (L); 08-6215-ag (Con)
Mudiangomba v. Holder
                                                                            BIA
                                                                     Straus, IJ
                                                                   A095 837 895
                 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 20 th day of April, two thousand ten.

PRESENT:
         JOHN M. WALKER, JR.,
         GUIDO CALABRESI,
         REENA RAGGI,
                 Circuit Judges.
_______________________________________

DIEMU JEAN PAUL MUDIANGOMBA,
         Petitioner,
              v.                                      08-3153-ag (L);
                                                      08-6215-ag (Con)
                                                      NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL, 1
         Respondent.
______________________________________
FOR PETITIONER:                    Justin Conlon, Law Offices of
                                   Michael Boyle, North Haven,


         1
         Pursuant to Federal Rule of Appellate Procedure
   43(c)(2), Attorney General Eric H. Holder, Jr., is
   automatically substituted for former Attorney General
   Michael B. Mukasey as respondent in this case.
                       Connecticut.
FOR RESPONDENT:        Tony West, Assistant Attorney
                       General, Civil Division; Leslie
                       McKay, Assistant Director, Office of
                       Immigration Litigation; Kristin K.
                       Edison, Attorney, U.S. Department of
                       Justice, Washington, D.C.
    UPON DUE CONSIDERATION of these petitions for review of

two decisions of the Board of Immigration Appeals (“BIA”),

it is hereby ORDERED, ADJUDGED, AND DECREED that the

petitions for review are DENIED.

    Petitioner Diemu Jean Paul Mudiangomba, allegedly a

native and citizen of the Democratic Republic of Congo

(“DRC”), seeks review of (1) a May 29, 2008 order of the BIA

affirming the July 21, 2006 decision of Immigration Judge

(“IJ”) Michael W. Straus denying petitioner’s application

for asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”), In re Diemu Jean Paul

Mudiangomba, No. A 095 837 895 (B.I.A. May 29, 2008), aff’g

No. A 095 837 895 (Immig. Ct. Hartford Jul. 21, 2006); and

(2) a November 28, 2008 order of the BIA denying his motion

to reconsider, In re Diemu Jean Paul Mudiangomba, No. A 095

837 895 (B.I.A. Nov. 28, 2008).    We assume the parties’

familiarity with the underlying facts and procedural history

of the case.



                             2
    A.    Asylum, Withholding of Removal, and CAT Relief

    When the BIA adopts the decision of the IJ and

supplements the IJ’s decision, this Court reviews the

decision of the IJ as supplemented by the BIA.     See Yan Chen

v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).     We review

the agency’s factual findings, including adverse credibility

findings, under the substantial evidence standard.     8 U.S.C.

§ 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90,

95 (2d Cir. 2008).   We review de novo questions of law and

the application of law to undisputed fact.   See Salimatou

Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

    It is well-settled that identity is a threshold issue

in establishing eligibility for asylum.   See Wangchuck v.

Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006)

(noting that a “petitioner’s nationality, or lack of

nationality, is a threshold question in determining his

eligibility for asylum” (internal quotation marks omitted));

see also Dhoumo v. BIA, 416 F.3d 172, 174 (2d Cir. 2005)

(same).   Here, substantial evidence supports the IJ’s

determination that Mudiangomba failed to establish that he

is a native and citizen of the DRC.   This evidence includes

a Zambian passport in the name “John Kapya Paul Mulumba”


                              3
bearing Mudiangomba’s photograph.   Although Mudiangomba

denied applying for the passport, its genuineness was

supported by a Forensic Document Laboratory (“FDL”) report,

which concluded that the passport “conform[ed] to specimen

documents on file in the FDL reference collection” and that

“no conclusive physical evidence of page or photograph

substitution and biographic data alteration was found.”

Further, contrary to Mudiangomba’s claim that he had not

traveled to Zambia in 2000, or visited the U.S. Consulate

there to apply for a visa, a State Department “Applicant

Case Lookup Detail” report, also bearing Mudiangomba’s

photograph, indicated that, on December 20, 2000, he

appeared as a “walk-in” applicant at the consulate in

Zambia, represented that he had been born in that country,

and was issued a United States visa.

    Mudiangomba challenges the weight the IJ afforded the

FDL report and his rejection of Mudiangomba’s explanation

for how smugglers provided him with the Zambian passport.

Weight and credibility assessments lie largely within the

discretion of the IJ, and we detect no abuse of that

discretion here.   See Xiao Ji Chen v. U.S. Dep’t of Justice,

471 F.3d 315, 342 (2d Cir. 2006); Majidi v. Gonzales, 430



                              4
F.3d 77, 80-81 (2d Cir. 2005).    Mudiangomba additionally

argues that the IJ failed to consider all of the relevant

evidence.   We presume, however, that an IJ has taken into

account all of the evidence before him, unless the record

compellingly suggests otherwise, which it does not in this

case.   See Xiao Ji Chen, 471 F.3d at 336 n.17.    Ultimately,

we conclude that a reasonable factfinder would not be

compelled to find contrary to the IJ that Mudiangomba

established that he was a native and citizen of the DRC.

See Majidi, 430 F.3d at 80-81 (noting that an IJ’s findings

of fact are conclusive “unless any reasonable adjudicator

would be compelled to conclude to the contrary”).

    In sum, the adverse credibility determination was

within the IJ’s discretion and provided evidentiary support

for the conclusion that Mudiangomba failed to establish his

eligibility for asylum.   Inasmuch as his claims for

withholding of removal and CAT relief share the same factual

predicate as his asylum claim, the IJ’s adverse credibility

finding is fatal to those claims as well.     See Paul v.

Gonzales, 444 F.3d 148, 157 (2d Cir. 2006).     Because the

adverse credibility finding is amply supported by the

record, the Court need not reach the agency’s alternate



                              5
burden of proof findings.

    B.      Motion to Reconsider

    A motion to reconsider must specify errors of fact or

law in the BIA’s decision and must be supported by pertinent

authority.    See 8 C.F.R. § 1003.2(b)(1); Ke Zhen Zhao v.

U.S. Dep’t of Justice, 265 F.3d 83, 90 (2d Cir. 2001).         A

motion to reconsider “is a request that the Board reexamine

its decision in light of additional legal arguments, a

change of law, or perhaps an argument or aspect of the case

which was overlooked.”    Matter of Cerna, 20 I. & N. Dec.

399, 402 n.2 (B.I.A. 1991) (internal quotation marks

omitted).

    In his motion to reconsider, Mudiangomba argued that

the IJ’s order designating the DRC as the alternative

country of removal was inconsistent with the agency’s

determination that Mudiangomba failed to prove Congolese

nationality and identity.    An alien may be removed to “[a]

country in which the alien resided before the alien entered

the country from which the alien entered the United States.”

8 U.S.C. § 1231(b)(2)(E)(iii).         In light of Mudiangomba’s

testimony that he resided in the DRC, we detect no error of

fact or law in the IJ’s designation of the DRC as the



                                   6
alternative country of removal.    See id.; see also Jama v.

ICE, 543 U.S. 335, 341 (2005).

    For the foregoing reasons, the petitions for review are

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

removal that the Court previously granted in these petitions

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

these petitions is DISMISSED as moot.    Any pending request

for oral argument in these petitions is DENIED in accordance

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

Second Circuit Local Rule 34(b).

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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