     14-1100
     Kaba v. Holder


                            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 ASUMMARY ORDER@).       A PARTY
CITING TO 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 16th day of April, two thousand fifteen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            GUIDO CALABRESI,
 9            REENA RAGGI,
10                 Circuit Judges.
11   _____________________________________
12
13   Mohamed Jean Aboulaye Kaba,
14   AKA Charlie,
15
16                         Petitioner,
17
18                    v.                                     14-1100
19
20   Eric H. Holder, Jr., United States
21   Attorney General,
22
23                 Respondent.
24   _____________________________________
25
26   FOR PETITIONER:                Mohamed Jean Aboulaye Kaba, pro se, New
27                                  York, New York.
                                          1
 1
 2   FOR RESPONDENT:         Joyce R. Branda, Acting Assistant
 3                           Attorney General; Julie M. Iversen,
 4                           Senior Litigation Counsel; Robert
 5                           Michael   Stalzer,  Trial  Attorney,
 6                           Office of Immigration Litigation,
 7                           United States Department of Justice,
 8                           Washington, D.C.
 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 is

13   DENIED.

14        Mohamed Jean Aboulaye Kaba, a native and citizen of the

15   Ivory Coast, seeks review of a March 13, 2014 decision of the

16   BIA, affirming a September 27, 2012 decision of Immigration

17   Judge (“IJ”) Helen Sichel, which denied Kaba’s applications for

18   adjustment of status and voluntary departure.         See In re

19   Mohamed Jean Aboulaye Kaba, No. A098 049 368 (B.I.A. Mar. 13,

20   2014), aff’g No. A098 049 368 (Immig. Ct. N.Y.C. Sept. 27, 2012).

21   Under the circumstances of this case, we review the IJ’s opinion

22   as modified by the BIA, see Xue Hong Yang v. U.S. Dep’t of

23   Justice, 426 F.3d 520, 522 (2d Cir. 2005), applying well

24   established standards of review, see 8 U.S.C. § 1252(b)(4)(B);

25   Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).

26   In doing so, we assume the parties’ familiarity with the

                                    2
1    underlying facts, the procedural history of the case, and the

2    issues on appeal.

3          For applications like Kaba’s, governed by the REAL ID Act,

4    the   agency   may,    “[c]onsidering    the      totality   of     the

5    circumstances . . . base a credibility determination on the

6    demeanor,   candor,   or   responsiveness    of   the   applicant    or

7    witness, the inherent plausibility of the applicant’s or

8    witness’s account,” and inconsistencies in an applicant’s

9    statements, and other record evidence “without regard to

10   whether” they go “to the heart of the applicant’s claim.”

11   8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey, 534

12   F.3d at 163-64.       We “defer . . . to an IJ’s credibility

13   determination unless, from the totality of the circumstances,

14   it is plain that no reasonable fact-finder could make such an

15   adverse credibility ruling.”     Xiu Xia Lin v. Mukasey, 534 F.3d

16   at 167.

17         The IJ reasonably relied on implausible aspects of Kaba’s

18   testimony in finding him not credible.      In making a finding that

19   an applicant’s claim is inherently implausible, an IJ is not

20   required to “explain in precise detail what made each identified

21   act implausible.”     See Wensheng Yan v. Mukasey, 509 F.3d 63,

22   67 (2d Cir. 2007).      Rather, if “the reasons for [the IJ’s]
                                     3
1    incredulity   are   evident,”   the   implausibility     finding   is

2    supported by substantial evidence.       Id.    We have recognized

3    that the point at which an implausibility finding “ceases to

4    be sustainable as reasonable and, instead, is justifiably

5    labeled ‘speculation,’ in the absence of an IJ's adequate

6    explanation, cannot be located with precision.” Ming Xia Chen

7    v. BIA, 435 F.3d 141, 145 (2d Cir. 2006).      Nevertheless, while

8    “bald” speculation is an impermissible basis for an adverse

9    credibility   finding,   “[t]he   speculation    that    inheres   in

10   inference is not ‘bald’ if the inference is made available to

11   the factfinder by record facts, or even a single fact, viewed

12   in the light of common sense and ordinary experience.”         Siewe

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

14   so long as an IJ’s finding is “tethered to record evidence, and

15   there is nothing else in the record from which a firm conviction

16   of error could properly be derived,” we will not disturb the

17   inherent implausibility finding.      Wensheng Yan v. Mukasey, 509

18   F.3d at 67; see also Siewe v. Gonzales, 480 F.3d at 169.           In

19   reviewing an adverse credibility determination based on an

20   applicant’s implausible testimony, “we review the entire

21   record, not whether each unusual or implausible feature of the

22   account can be explained or rationalized.”       Ying Li v. Bureau
                                   4
1    of Citizenship and Immigration Servs., 529 F.3d 79, 80 (2d Cir.

2    2008).

3        Here, Kaba testified that he lived with his girlfriend for

4    two years and had two children with her, but did not know her

5    immigration status at any time.    He also testified that he had

6    impersonated her to find employment four separate times prior

7    to his employment at the bakery.    The IJ reasonably relied on

8    this testimony to find it implausible that Kaba would not know

9    (1) his girlfriend’s immigration status or (2) that the forms

10   he submitted to the bakery falsely indicated that his girlfriend

11   was a U.S. citizen.   This reasoning was not unduly speculative,

12   and it is supported by testimony in the record.    See Siewe v.

13   Gonzales, 480 F.3d at 168-169 (holding that speculation is not

14   “bald” if based on facts in record viewed in light of common

15   sense).

16       The IJ also reasonably relied on inconsistencies between

17   Kaba’s testimony and the testimony of the bakery’s owner.   Kaba

18   testified that he went to the bakery to speak to a manager, and

19   that the manager completed his employment application for him.

20   The owner, however, testified that the store had no manager,

21   that he interviewed Kaba, and that no employee ever filled out

22   paperwork for job applicants.   Kaba provided no explanation for
                                     5
1    these discrepancies at his hearing.             Accordingly, we identify

2    no   basis   to    disturb       the   agency’s       adverse    credibility

3    determination.

4         This adverse finding disposes of Kaba’s argument that he

5    is eligible for adjustment of status.             Even if we could reach

6    his argument that the Immigration and Nationality Act (“INA”)

7    requires that a false claim to citizenship be willful, Kaba’s

8    willfulness is supported by the IJ’s finding that Kaba was not

9    credible in denying knowledge of the false claim.                          See

10   Rodriguez    v.   Gonzales,      451   F.3d     60,   65   (2d   Cir.   2006)

11   (recognizing      that   false    denial   of    knowledge       can   support

12   willfulness).

13        Kaba also argues that the IJ denied him due process. Kaba,

14   however, failed to raise this issue before the BIA.                See Foster

15   v. INS, 376 F.3d 75, 78 (2d Cir. 2004) (holding that petitioner

16   must “raise issues to the BIA in order to preserve them for

17   judicial review” (emphasis omitted)).             Accordingly, we decline

18   to consider this argument.

19        Finally, Kaba argues that the agency’s denial of voluntary

20   departure was arbitrary.          We lack jurisdiction, however, to

21   review Kaba’s challenge to the IJ’s discretionary balancing of

22   the equities.      See 8 U.S.C. §§ 1229c(f), 1252(a)(2)(D).
                                       6
1       For the foregoing reasons, the petition for review is

2   DENIED.

3                        FOR THE COURT:
4                        Catherine O’Hagan Wolfe, Clerk of Court




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