         11-2104
         Bah v. Holder
                                                                                         BIA
                                                                                 Balasquide IJ
                                                                                 A095 476 281
                               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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 6th day of November, two thousand thirteen.
 5
 6       PRESENT:
 7                       RALPH K. WINTER,
 8                       ROSEMARY S. POOLER,
 9                       ROBERT D. SACK,
10                            Circuit Judges.
11
12       _________________________________________
13
14       MAMADOU YERO BAH,
15                Petitioner,
16
17                        v.                                      11-2104
18                                                                NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _________________________________________
23
24       FOR PETITIONER:               Theodore Vialet, New York, NY.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney General;
27                                     David V. Bernal, Assistant Director;
28                                     Lance L. Jolley, Trial Attorney, Office
29                                     of Immigration Litigation, United
30                                     States Department of Justice,
31                                     Washington, D.C.
32
 1       UPON DUE CONSIDERATION of this petition for review of a

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

 3   ORDERED, ADJUDGED, AND DECREED that the petition for review is

 4   DENIED.

 5       Petitioner Mamadou Yero Bah, a native and citizen of

 6   Guinea, seeks review of an April 22, 2011, decision of the BIA

 7   affirming the April 20, 2009, decision of Immigration Judge

 8   (“IJ”) Javier Balasquide denying his application for asylum,

 9   withholding of removal, and relief under the Convention

10   Against Torture (“CAT”).    In re Mamadou Yero Bah, No. A095 476

11   281 (B.I.A. Apr. 22, 2011), aff’g No. A095 476 281 (Immig. Ct.

12   N.Y. City Apr. 20, 2009).    We assume the parties’ familiarity

13   with the underlying facts and procedural history of the case.

14       We have reviewed both the BIA’s and the IJ’s opinions.

15   See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.

16   2005).    The applicable standards of review are well

17   established.    See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin

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

19       Substantial evidence supports the agency’s determination

20   that Bah did not testify credibly regarding his claim that he

21   had been persecuted in Guinea, as the IJ reasonably relied on

22   inconsistencies in the record.       See Zhou Yun Zhang v. INS, 386


                                      2
 1   F.3d 66, 73 (2d Cir. 2004), overruled on other grounds by Shi

 2   Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007

 3   (en banc).   As the IJ found, Bah’s testimony was inconsistent

 4   with his written statement regarding when his second arrest

 5   occurred and how long he was held at Camp Koundara, and both

 6   Bah’s testimony and written statement were inconsistent with

 7   his brother’s letter regarding the reason for Bah’s second

 8   arrest.   Also, as the IJ found, Bah’s direct testimony

 9   regarding the number of times he had been arrested was

10   inconsistent with his testimony on cross examination after

11   being confronted with the discrepancy between his testimony

12   and his brother’s letter.   The IJ reasonably declined to

13   credit Bah’s explanations for these inconsistencies – that he

14   had difficulty remembering the events because they were

15   traumatic, and that his brother’s letter described an arrest

16   that Bah did not include in his asylum application.     Although

17   Bah’s faulty memory may be a plausible explanation for certain

18   discrepancies, his explanation for his brother’s letter did

19   not comport with the timeline he had testified to regarding

20   his persecution in Guinea, and thus was not credible.     Neither

21   explanation would compel a reasonable fact finder to credit

22   Bah’s testimony.   See Majidi v. Gonzales, 430 F.3d 77, 80 (2d


                                    3
 1   Cir. 2005) (“A petitioner must do more than offer a

 2   ‘plausible’ explanation for his inconsistent statements to

 3   secure relief; he must demonstrate that a reasonable fact-

 4   finder would be compelled to credit his testimony.”).

 5       Bah argues that, even with the inconsistencies in his

 6   testimony, his testimony was otherwise detailed and specific,

 7   and, thus, the agency’s adverse credibility determination is

 8   not supported by substantial evidence.   The adverse

 9   credibility finding, however, was based on inconsistencies

10   regarding the dates and duration of Bah’s arrests and

11   detention, as well as the number of times he was arrested.

12   Because Bah’s application for relief was based on these

13   arrests, detentions and beatings, the inconsistencies are

14   integral to his claim for relief, and are a reasonable basis

15   for the agency’s adverse credibility determination.     See

16   Hongsheng Leng v. Mukasey, 528 F.3d 135, 141 (2d Cir. 2008)

17   (“The agency may properly base an adverse credibility

18   determination on a discrepancy in the petitioner’s evidence if

19   the discrepancy in question goes to the heart of the

20   petitioner’s claim for relief.”) (internal quotation marks

21   omitted).   Nothing in the record compels the conclusion that

22   Bah testified credibly regarding his claims.   See 8 U.S.C.


                                    4
 1   § 1252(B)(4)(b); Ying Li v. Bureau of Citizenship and Immig.

 2   Servs, 529 F.3d 79, 81 (2d Cir. 2008) (applying the

 3   substantial evidence standard to credibility determinations).

 4   Accordingly, the agency did not err in denying Bah’s

 5   applications for asylum, withholding of removal, and CAT

 6   relief because those claims were based on the same factual

 7   predicate.    See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

 8   2006).

 9       For the foregoing reasons, the petition for review is

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

11   that the Court previously granted in this petition is VACATED,

12   and any pending motion for a stay of removal in this petition

13   is DISMISSED as moot.    Any pending request for oral argument

14   in this petition is DENIED in accordance with Federal Rule of

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

16   34.1(b).

17                                FOR THE COURT:
18                                Catherine O’Hagan Wolfe, Clerk
19
20




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