         08-4189-ag
         Diawara v. Holder
                                                                                      BIA
                                                                               Sichel, IJ
                                                                             A098 363 423
                             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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 13 th day of January, two thousand ten.
 5
 6       PRESENT:
 7                    DENNIS JACOBS,
 8                         Chief Judge,
 9                    ROGER J. MINER,
10                    GERARD E. LYNCH,
11                         Circuit Judges.
12
13       _______________________________________
14
15       MAMA DIAWARA,
16                Petitioner,
17
18                    v.                                        08-4189-ag
19                                                              NAC
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL, ET AL.,
22                Respondents.
23       _______________________________________
24
25
26       FOR PETITIONER:               Brian I. Kaplan, New York, New York.
 1   FOR RESPONDENT:        Tony West, Assistant Attorney
 2                          General; Michael P. Lindemann,
 3                          Assistant Director; Lyle D. Jentzer,
 4                          Senior Litigation Counsel;
 5                          Christopher C. Fuller, Senior
 6                          Litigation Counsel, Office of
 7                          Immigration Litigation, United
 8                          States Department of Justice,
 9                          Washington, D.C.
10
11       UPON DUE CONSIDERATION of this petition for review of a

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

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

14   is DISMISSED IN PART AND DENIED IN PART.

15       Mama Diawara, a native and citizen of the Ivory Coast,

16   seeks review of a July 24, 2008 order of the BIA affirming

17   the June 16, 2006 decision of Immigration Judge (“IJ”) Helen

18   J. Sichel denying Diawara’s applications for asylum,

19   withholding of removal, and for relief under the Convention

20   Against Torture (“CAT”).   In re Mama Diawara, No. A098 363

21   423 (B.I.A. July 24, 2008), aff’g No. A098 363 423 (Immig.

22   Ct. N.Y. June 16, 2006).   We assume the parties’ familiarity

23   with the underlying facts and procedural history in this

24   case.

25       “Where the BIA expressly adopts the IJ’s findings and

26   reasoning, as it did here, we review the decision of the IJ

27   as if it were that of the BIA.”   See Mei Chai Ye v. U.S.

                                   2
1    Dep’t of Justice, 489 F.3d 517, 523 (2d Cir. 2007) (quoting

2    Chun Gao v. Gonzales, 424 F.3d 122, 124 (2d Cir. 2005)).

3    The IJ’s factual findings, including adverse credibility

4    findings, are reviewed under the substantial evidence

5    standard.   See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

6    Holder, 562 F.3d 510, 513, (2d Cir. 2009) (stating that “we

7    uphold the IJ’s factual findings if they are supported by

8    ‘reasonable, substantial and probative evidence in the

9    record’” (quoting Lin Zhong v. U.S. Dep’t of Justice, 480

10   F.3d 104, 116 (2d Cir. 2007))).

11       We lack jurisdiction to consider Diawara’s challenge to

12   the agency’s pretermission of his asylum application.      See

13   8 U.S.C. § 1158(a)(3) (explaining that no court shall have

14   jurisdiction to review any determination of the Attorney

15   General regarding the timeliness of an asylum application

16   under section 1158(a)(2)(B)).       Although we retain

17   jurisdiction to review constitutional claims and questions

18   of law, 8 U.S.C. § 1252(a)(2)(D), Diawara raises no such

19   argument, essentially disputing the IJ’s purely factual

20   finding that Diawara’s testimony regarding his date of entry

21   was not credible.   See Xiao Ji Chen v. U.S. Dep’t of

22   Justice, 471 F.3d 315, 329 (2d Cir. 2006) (finding that a


                                     3
1    question of law is not implicated “when the petition for

2    review essentially disputes the correctness of an IJ’s fact-

3    finding or the wisdom of his exercise of discretion”).

4        With respect to Diawara’s applications for withholding

5    of removal and CAT relief, the IJ’s adverse credibility

6    determination is supported by substantial evidence.

7    Contrary to Diawara’s argument, the discrepancies that the

8    IJ relied upon in making her adverse credibility

9    determination were not ancillary.   To the contrary, the IJ

10   reasonably questioned whether Diawara was actually from the

11   Ivory Coast — the country where he was allegedly persecuted.

12   For example, Diawara’s national ID card listed his

13   occupation as mechanic, an occupation Diawara never had.      A

14   reasonable factfinder would not have been compelled to

15   accept Diawara’s explanation that his aspiration to one day

16   become a mechanic explained this discrepancy.     See Majidi v.

17   Gonzales, 430 F.3d 77, 80–81 (2d Cir. 2005) .   Moreover,

18   although Diawara claimed to have lived in the Ivory Coast

19   for twenty-three years and testified that he was persecuted

20   because of his imputed sympathies for the RDR

21   (“Rassemblement des Republicaines” or “Rally of

22   Republicans”) party, he did not know that party’s actual


                                   4
1    name.   These and other discrepancies undermined Diawara’s

2    credibility and constituted the substantial evidence

3    supporting the IJ’s adverse credibility finding.

4        Because the IJ’s adverse credibility determination was

5    supported by substantial evidence, the IJ reasonably denied

6    Diawara’s application for withholding of removal and CAT

7    relief, as both claims were based on the same factual

8    predicate.   See Paul v. Gonzales, 444 F.3d 148, 155-56 (2d

9    Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

10   520, 523 (2d Cir. 2005).

11       For the foregoing reasons, the petition for review is

12   dismissed as to Diawara’s asylum claim and DENIED as to

13   Diawara’s withholding of removal and CAT claims.   As we have

14   completed our review, the pending motion for a stay of

15   removal in this petition is DISMISSED as moot.

16

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




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