    12-937
    Diakite v. Holder
                                                                                  BIA
                                                                             Nelson, IJ
                                                                          A089 253 754
                         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 Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 26th day of August, two thousand fourteen.

    PRESENT:
             ROBERT A. KATZMANN,
                  Chief Judge,
             REENA RAGGI,
             RICHARD C. WESLEY,
                  Circuit Judges.
    _____________________________________

    SOULEYMANE DIAKITE, AKA MOUSSA DIAKITE,
             Petitioner,

                        v.                                 12-937
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _______________________________________

    FOR PETITIONER:               Camille J. Mackler, New York, NY.

    FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
                                  General; Keith I. McManus, Senior
                                  Litigation Counsel; Surell Brady,
                                  Trial Attorney, Office of
                                  Immigration Litigation, United
                                  States Department of Justice,
                                  Washington, D.C.
    UPON DUE CONSIDERATION of this petition for review of a

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

hereby ORDERED, ADJUDGED, AND DECREED that the petition for

review is DISMISSED in part and DENIED in part.

    Souleymane Diakite, a native and citizen of Ivory

Coast, seeks review of a February 9, 2012, decision of the

BIA affirming a November 18, 2009, decision by an

Immigration Judge (“IJ”) denying asylum, withholding of

removal, and relief under the Convention Against Torture

(“CAT”).     In re Souleymane Diakite, No. A089 253 754 (B.I.A.

Feb. 9, 2012), aff’g No. A089 253 754 (Immig. Ct. N.Y. City

Nov. 18, 2009).     We assume the parties’ familiarity with the

underlying facts and procedural history of this case.

    Under the circumstances of this case, we have reviewed

both the IJ’s and the BIA’s opinions “for the sake of

completeness.”     Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

2008).     The applicable standards of review are well

established.     See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.

Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam).

    Pursuant to 8 U.S.C. § 1158(a)(3), we lack jurisdiction

to review the agency’s determination that an asylum

application is untimely under 8 U.S.C. § 1158(a)(2)(B).

Although we retain jurisdiction to review “constitutional

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claims or questions of law,” 8 U.S.C. § 1252(a)(2)(D),

Diakite challenges only the weight accorded certain

evidence.   Accordingly, he has not raised a colorable

question of law or constitutional claim.   We therefore

dismiss the petition as to Diakite’s asylum claim.

    We do have jurisdiction to review the agency’s denial

of withholding of removal on the ground that Diakite’s

testimony was not credible.   For applications, like

Diakite’s, governed by the REAL ID Act, the agency may,

“[c]onsidering the totality of the circumstances,” base a

credibility finding on an asylum applicant’s demeanor, the

plausibility of his account, and inconsistencies in his

statements and other record evidence “without regard to

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

8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin,

534 F.3d at 163-64.   Here, substantial evidence supports the

agency’s decision.

    First, the IJ reasonably relied in part on Diakite’s

demeanor, noting that he was hesitant and lacked

forthrightness when answering questions.   Particular

deference is given to the trier of fact’s assessment of

demeanor.   Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir.


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2005); see Zhou Yun Zhang v. U.S. INS, 386 F.3d 66, 73-74

(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).

    The demeanor finding is strengthened and the adverse

credibility determination is further supported by specific

inconsistencies identified by the IJ.       See Li Hua Lin v.

U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006).

Diakite’s testimony significantly differed from his aslyum

application. For example, Diakite testified that he

sustained an injury to his ear during an attack by the Young

Patriots, but did not mention that injury in his

application.   The agency was not compelled to accept his

explanation that he omitted the injury because it was too

painful to discuss, given the other injuries and deaths

addressed in the application.       Majidi, 430 F.3d at 80-81.

     Diakite’s testimony also provided some reason to

question his credibility. For example, although one basis of

Diakite’s claim rested on his membership in the Rally for

Republicans (“RDR”), Diakite stumbled in attempting to

identify the party’s full name, and could not clearly

explain why he supported that political party.       Cf. Rizal v.

Gonzales, 442 F.3d 84, 90 (2d Cir. 2006) (holding that,

although “doctrinal knowledge” of a religion is not required

                                4
for asylum on religious grounds, lack of knowledge can under

certain circumstances indicate that the applicant is not

credible).

    Having reasonably questioned Diakite’s credibility, the

agency did not err in relying on his failure to provide

corroborating evidence.   See Biao Yang v. Gonzales, 496 F.3d

268, 273 (2d Cir. 2007) (per curiam).   Diakite failed to

provide any evidence of the broken arm he sustained in the

second attack, although that evidence was apparently

available.   And the State Department country reports

submitted did not show the Dioula as one of the groups that

have been subject to ethnic tensions in Ivory Coast, nor did

they contain any statements that security forces harassed or

detained RDR members in Ivory Coast in recent years.    See

Jian Hui Shao v. Mukasey, 546 F.3d 138, 166 (2d Cir. 2008).

    Given the demeanor finding, lack of corroboration, and

multiple discrepancies in Diakite’s testimony, substantial

evidence supports the adverse credibility determination.

See Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289,

295-96 (2d Cir. 2006) (per curiam). Because that

determination is dispositive, we deny Diakite’s petition for

review of his claim for withholding of removal.


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    For the foregoing reasons, the petition for review is

DISMISSED in part and DENIED in part.

    To the extent Diakite seeks review of the agency’s

November 2012 denial of his motion to reopen, this request

is denied because no petition for review was filed from that

decision.   The September 2013 brief seeking such relief is

hereby STRICKEN.   See 8 U.S.C. § 1252(b)(1) (providing that

a petition for review must be filed within 30 days after the

date of the agency’s final order); Stone v. INS, 514 U.S.

386, 405-06 (1995) (holding that removal orders and denials

of motions to reopen are separate and distinct final

orders).

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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