10-2525-ag
Konate v. Holder
                                                                                BIA
                                                                         Bukszpan, IJ
                                                                        A095 850 665
                    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 19th day of July, two thousand eleven.

PRESENT: DENNIS JACOBS,
              Chief Judge,
         JON O. NEWMAN,
         DEBRA ANN LIVINGSTON,
              Circuit Judges.
______________________________________
MOUSSA KONATE,
         Petitioner,

                   v.                                              10-2525-ag
                                                                          NAC
ERIC H. HOLDER, JR., U.S. ATTORNEY
GENERAL,
         Respondent.
______________________________________

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

FOR RESPONDENT:                Tony West, Assistant Attorney General;
                               Michelle    G.    Latour,    Assistant
                               Director, Jessica E. Sherman, Trial
                               Attorney,    Office   of   Immigration
                               Litigation,    U.S.    Department   of
                               Justice, Washington D.C.
    UPON DUE CONSIDERATION of this petition for review of a

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

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

DENIED.

    Petitioner Moussa Konate, an alleged native and citizen

of Mauritania, seeks review of the May 26, 2010, decision of

the BIA affirming the August 15, 2008, decision of Immigration

Judge (“IJ”) Joanna Bukszpan pretermitting his application for

asylum,    and   denying   his   application   for   withholding    of

removal.    In re Moussa Konate, No. A095 850 665 (B.I.A. May

26, 2010), aff’g No. A095 850 665 (Immig. Ct. N.Y. City Aug.

15, 2008).       We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

    Under the circumstances of this case, we have reviewed

the IJ’s decision minus the arguments for denying relief that

were not relied upon by the BIA.        See Xue Hong Yang v. U.S.

Dep’t of Justice, 426 F.3d 520, 522 (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).        We review only the agency’s denial of

withholding of removal because Konate does not challenge the

agency’s pretermission of his asylum application.



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    The agency reasonably concluded that Konate failed to

demonstrate his eligibility for withholding of removal because

substantial evidence supports the agency’s adverse credibility

determination. Although Konate claims that he established his

eligibility for relief and that the agency improperly relied

on minor inconsistencies, the agency reasonably supported its

adverse   credibility     determination      by    relying    on    negative

findings in a forensic report concerning Konate’s identity and

nationality,    and    Konate’s    failure    to    explain     or       submit

evidence to rebut those findings.          See In re O-D-, 21 I. & N.

Dec. 1079, 1082 (BIA 1998) (drawing “adverse inferences” from

applicant’s attempt to establish nationality and identity with

documents that a forensics report found to be false, and from

failure   to    refute    or   explain     the      forensics       report’s

conclusions,     and     finding    that     due     to   existence          of

inconsistencies in the applicant’s testimony, remaining record

failed to overcome inference of incredibility created by false

documents); Borovikova v. U.S. Dept. of Justice, 435 F.3d 151,

157-58 (2d Cir. 2006) (determining that because substantial

evidence supported the IJ’s finding that a submitted birth

certificate was likely fraudulent, the IJ did not err in

resting   her   adverse     credibility      determination          on    that

finding). Moreover, the agency reasonably found that Konate’s

contradictory    testimony     regarding     the    sequence       of    events

                                   -3-
surrounding     his   father’s    death    and   his     expulsion     from

Mauritania, and his inability to explain whether he was eleven

or sixteen years old at the time, constituted substantial

discrepancies going to the heart of Konate’s claim, as his

claim was based exclusively on this incident.              See Secaida-

Rosales v. INS, 331 F.3d 297, 307 (2d Cir. 2003) (holding that

any discrepancy relied upon to support an adverse credibility

determination must be “substantial” when measured against the

record as a whole); Majidi v. Gonzales, 430 F.3d 77, 81-82 (2d

Cir.    2005)   (holding   that   substantial       evidence      supported

agency’s adverse credibility determination because petitioner

provided dramatically different accounts of incident on which

claim hinged).

       Accordingly, because the agency’s adverse credibility

determination was supported by substantial evidence, it did

not err in denying Konate’s application for withholding of

removal.   See Majidi, 430 F.3d at 81-82 (denying petition for

review of agency’s denial of asylum and withholding of removal

because    substantial     evidence     supported      agency’s     adverse

credibility determination).

       For the foregoing reasons, the petition for review is

DENIED.                           FOR THE COURT:
                                  Catherine O’Hagan Wolfe, Clerk




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