    15-1094
    Jalloh v. Lynch
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A095 164 602

                           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 TO 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 Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the
    6th day of December, two thousand sixteen.

    PRESENT:
             ROBERT A. KATZMANN,
                  Chief Judge,
             RICHARD C. WESLEY,
             PETER W. HALL,
                  Circuit Judges.
    _____________________________________

    MUCTARR JALLOH,
             Petitioner,

                      v.                                             15-1094
                                                                     NAC
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                      Andy Wong, New York, New York.

    FOR RESPONDENT:                      Benjamin C. Mizer, Principal Deputy
                                         Assistant Attorney General; Leslie
                                         McKay, Assistant Director; Jessica
                                         A. Dawgert, Trial Attorney, Office
                                         of Immigration Litigation, United
                                         States 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 Muctarr Jalloh, a native and citizen of Sierra

Leone, seeks review of a March 25, 2015, decision of the BIA

affirming a March 5, 2013, decision of an Immigration Judge

(“IJ”) denying Jalloh’s application for asylum, withholding of

removal, and relief under the Convention Against Torture

(“CAT”).    In re Muctarr Jalloh, No. A095 164 602 (B.I.A. Mar.

25, 2015), aff’g No. A095 164 602 (Immig. Ct. N.Y.C. Mar. 5,

2013).    We assume the parties’ familiarity with the underlying

facts and procedural history in this case.

    We have reviewed the IJ’s decision as modified 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).

    Jalloh raised two claims for asylum, one based on harm he

suffered during a civil war in Sierra Leone, and another based

on his opposition to female genital mutilation (“FGM”), which

he alleges his daughters would have to undergo if they accompany



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him to Sierra Leone.   Because the agency denied these claims

for different reasons, we address them separately.

I.   Claim Based on Past Harm

     The agency denied on credibility grounds Jalloh’s claim

based on beatings he allegedly suffered during a civil war in

Sierra Leone.    In pre-REAL ID Act cases such as Jalloh’s, an

adverse credibility determination must be based on “specific,

cogent reasons” that “bear a legitimate nexus” to the finding,

and any discrepancy must be “substantial” when measured against

the record as a whole.     See Secaida-Rosales v. INS, 331 F.3d

297, 307 (2d Cir. 2003) (internal quotation marks omitted).

Nonetheless, our “review of the IJ’s credibility findings is

highly deferential . . . and the IJ’s ‘administrative findings

of fact are conclusive unless any reasonable adjudicator would

be compelled to conclude to the contrary.’”          Majidi v.

Gonzales, 430 F.3d 77, 79 (2d Cir. 2005) (quoting 8 U.S.C.

§ 1252(b)(4)(B)).   Here, the adverse credibility is supported

by substantial evidence.

     The   BIA    affirmed   the   IJ’s   adverse   credibility

determination on the basis of two inconsistencies.    The first

relates to the cause of damage to Jalloh’s teeth and nose.

Jalloh submitted a medical report from a U.S. doctor which

recounted, based on Jalloh’s statements, the beating Jalloh

suffered at the hands of a rebel political party in 1999.   The
                               3
doctor stated: “Patient showed signs of physical abuse that he

sustained in Sierra Leone in the following ways . . . Nose:

Patient had nasal bone fracture . . .[;] Mouth: Patient had

extensive dental workup at Harlem Hospital as 6 of his teeth

had been damaged due to severe trauma.”      Jalloh testified,

however, that the problems with his teeth were due to routine

dental issues and that he could not remember how he hurt his

nose.

    The second inconsistency related to whether Jalloh was

beaten once or twice by rebels.    Jalloh testified that he was

beaten twice and confirmed that the first beating was severe,

but his application stated that he was beaten in 1999, while

in 1997, rebels merely pushed him out of the way to get to his

father.   When confronted with this inconsistency, he testified

that, in 1997, the rebels were pushing him away and threatening

to kill him, and he considered that a beating.

    Both of the above inconsistencies are supported by the

record, and they undermine Jalloh’s account of the only two

incidents of past harm he alleged in his application.   Zhou Yun

Zhang v. U.S. INS, 386 F.3d 66, 74 (2d Cir. 2004), overruled

on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494

F.3d 296 (2d Cir. 2007); Xian Tuan Ye v. DHS, 446 F.3d 289, 295

(2d Cir. 2006).


                               4
    As to the inconsistencies regarding Jalloh’s injuries, he

argues that he never told the doctor that his injuries were due

to beatings in Sierra Leone and that the doctor’s conclusions

were based on the doctor’s independent interpretation of the

evidence.   However, it was Jalloh’s burden to establish his

claims for relief, and he submitted the doctor’s report without

further explanation, even though medical records from Harlem

Hospital may have confirmed or contradicted the doctor’s

conclusions.   8 U.S.C. § 1158(b)(1)(B)(i) (establishing that

alien bears burden of establishing asylum eligibility).   Given

that the only evidence supporting Jalloh’s claim that the doctor

incorrectly inferred the cause is Jalloh’s own statement, there

is no evidence compelling the conclusion that the doctor’s

report is inaccurate.    8 U.S.C. § 1252(b)(4)(B); Majidi, 430

F.3d at 79-80.

    As to the inconsistency regarding the severity of the 1997

incident, the IJ was not required to credit Jalloh’s explanation

that being pushed out of the way even under threat of violence

constituted a beating.    Majidi, 430 F.3d at 80-81.   Jalloh’s

explanation was inconsistent with his testimony that the 1997

beating was severe.

    Given our “highly deferential” review of the agency’s

credibility findings, we conclude that there is no evidence

compelling the conclusion that Jalloh testified credibly.
                            5
Majidi, 430 F.3d at 79; 8 U.S.C. § 1252(b)(4)(B).    Because the

inconsistencies identified by the agency concerned “the very

persecution from which [Jalloh] sought asylum” and the injuries

caused by the alleged persecution, they provide substantial

evidence in support of the adverse credibility determination.

Xian Tuan Ye, 446 F.3d at 295 (quoting Majidi, 430 F.3d at 81).

Accordingly, with respect to this claim based on past harm, the

adverse credibility determination is dispositive of asylum,

withholding of removal, and CAT relief because all three claims

were based on the same factual predicate.   See Paul v. Gonzales,

444 F.3d 148, 156 (2d Cir. 2006).

II.   Claim Based on Future Opposition to FGM

      The agency also concluded that Jalloh failed to meet his

burden of showing an objectively reasonable fear of future

persecution based on his opposition to FGM.      To establish

asylum eligibility based on a well-founded fear of persecution,

an applicant must show that “he subjectively fears persecution”

and that “his fear is objectively reasonable.”     Ramsameachire

v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).      An alien may

make this showing either by offering evidence that “‘he would

be singled out individually for persecution’” or by proving “the

existence of ‘a pattern or practice in his . . . country . .

. of persecution of a group of persons similarly situated to


                               6
the applicant. . . .’”   Kyaw Zwar Tun v. U.S. INS, 445 F.3d 554,

564 (2d Cir. 2006) (quoting 8 C.F.R. § 208.13(b)(2)(iii)).

    There is no error in the agency’s determination that Jalloh

failed to show a well-founded fear of persecution.     He is not

eligible for asylum based on the harm that his daughters might

suffer.    See Tao Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir.

2007).    And there is no evidence in the record that adults who

oppose FGM are subject to harm in Sierra Leone.       As the IJ

pointed out, the 2010 State Department report indicates that

FGM is in decline.    Moreover, Jalloh alleged that his family

was threatening him because of his opposition to FGM, but he

also testified that his family was not in Sierra Leone.    Given

the absence of any objective evidence that Jalloh would be

harmed on the basis of his opposition to FGM, the agency

reasonably concluded that he did not have a well-founded fear

of future harm.   See Jian Xing Huang v. U.S. INS, 421 F.3d 125,

129 (2d Cir. 2005).

    For the foregoing reasons, the petition for review is

DENIED.

                              FOR THE COURT:
                              Catherine O=Hagan Wolfe, Clerk




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