     15-3326
     Ndongo v. Sessions
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A087 779 442
                               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.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   26th day of April, two thousand seventeen.
 5
 6   PRESENT:
 7            ROBERT A. KATZMANN,
 8                 Chief Judge,
 9            BARRINGTON D. PARKER,
10            DENNY CHIN,
11                 Circuit Judges.
12   _____________________________________
13
14   CHEIKHNA ABDOULAYE NDONGO,
15            Petitioner,
16
17                        v.                                         15-3326
18                                                                   NAC
19   JEFFERSON B. SESSIONS III, UNITED
20   STATES ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                      Andy Wong, Washington, D.C.
25
26   FOR RESPONDENT:                      Benjamin C. Mizer, Principal Deputy
27                                        Assistant Attorney General; Jeffrey
28                                        R. Leist, Senior Litigation Counsel;
29                                        David Schor, Trial Attorney, Office
30                                        of Immigration Litigation, United
31                                        States Department of Justice,
32                                        Washington, D.C.
33
1         UPON DUE CONSIDERATION of this petition for review of a

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

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

4    DENIED.

5         Petitioner Cheikhna Abdoulaye Ndongo, a native and citizen

6    of Mauritania, seeks review of an October 1, 2015, decision of

7    the BIA, affirming a May 1, 2014, decision of an Immigration

8    Judge     (“IJ”)    denying    Ndongo’s   application   for     asylum,

9    withholding of removal, and relief under the Convention Against

10   Torture (“CAT”).      In re Cheikhna Abdoulaye Ndongo, No. A087 799

11   442 (B.I.A. Oct. 1, 2015), aff’g No. A087 799 442 (Immig. Ct.

12   N.Y. City May 1, 2014).       We assume the parties’ familiarity with

13   the underlying facts and procedural history in this case.

14        Under the circumstances of this case, we have reviewed both

15   the IJ’s and the BIA’s opinions “for the sake of completeness.”

16   Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.

17   2006).       The    applicable    standards   of   review     are   well

18   established.       See 8 U.S.C. § 1252(b); Xiu Xia Lin v. Mukasey,

19   534 F.3d 162, 165-66 (2d Cir. 2008).

20        For asylum applications like Ndongo’s, governed by the REAL

21   ID Act, the agency may, “[c]onsidering the totality of the

22   circumstances,” base a credibility finding on “the inherent

23   plausibility” of the applicant’s account and on inconsistencies

                                         2
1    in an applicant’s testimony and evidence, “without regard to

2    whether”   those   inconsistencies           “go   to   the   heart   of    the

3    applicant’s claim.”      8 U.S.C. § 1158(b)(1)(B)(iii).                     “We

4    defer . . . to an IJ’s credibility determination unless, from

5    the totality of the circumstances, it is plain that no

6    reasonable fact-finder could make such an adverse credibility

7    ruling.”   Xiu Xia Lin, 534 F.3d at 167.            “A petitioner must do

8    more than offer a plausible explanation for his inconsistent

9    statements to secure relief; he must demonstrate that a

10   reasonable    fact-finder   would       be    compelled       to   credit   his

11   testimony.”    Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005)

12   (internal quotation marks omitted).

13       The threshold question is whether there is a credibility

14   determination to review here.           An IJ must “decide explicitly”

15   whether an applicant’s testimony is credible.                 Diallo v. INS,

16   232 F.3d 279, 290 (2d Cir. 2000).             We conclude that there is

17   a sufficiently explicit determination in this case.                    The IJ

18   cited the REAL ID Act, noted the “serious inconsistencies” among

19   Ndongo’s statements and evidence, and concluded that, “[b]ased

20   on the inconsistencies,” Ndongo “had failed to meet the burden

21   of proof of establishing past persecution or a well-founded fear

22   of persecution.”     Special App. 10, 12; see also Zaman v.

23   Mukasey, 514 F.3d 233, 237-38 (2d Cir. 2008).

                                         3
1        Turning to the denial of relief, the agency’s adverse

2    credibility   determination   is   supported   by    substantial

3    evidence.   The essence of Ndongo’s claim is that he was born

4    into slavery in Mauritania and that he fears that his master,

5    who exercised strict control over his movements, will harm him

6    and his family.   As discussed below, the inconsistencies call

7    into question the veracity of Ndongo’s claim.

8        First, the agency reasonably relied on inconsistencies

9    concerning Ndongo’s wife’s place of birth and her current

10   location, as those inconsistencies called into question whether

11   Ndongo’s wife and, thus, Ndongo, was a slave.       See 8 U.S.C.

12   § 1158(b)(1)(B)(iii).   Ndongo testified that his wife was born

13   into slavery in Mauritania under the same slave master he was.

14   But his application reports that his wife was born in Senegal.

15   The IJ was not compelled to accept Ndongo’s explanation that

16   he was confused.     See Majidi, 430 F.3d at 80.        And the

17   inconsistency was compounded by another concerning his wife’s

18   current location: Ndongo’s application reported that his wife

19   lived in Senegal, but he testified that she lived in Mauritania.

20       The IJ also reasonably found Ndongo’s testimony concerning

21   his wife implausible.   See Yan v. Mukasey, 509 F.3d 63, 66 (2d

22   Cir. 2007).    In addition to being inconsistent, Ndongo’s

23   ultimate testimony that his wife was born in Senegal but went

                                    4
1    to Mauritania at age 20 raised doubt as to how she came to be

2    a slave in Mauritania.   Ndongo’s explanation—that he and his

3    wife had not met before their marriage—failed to clarify this

4    issue.   See Majidi, 430 F.3d at 80.        Moreover, Ndongo’s

5    application lists his wife’s ethnicity as “Bidane,” which, as

6    the IJ noted, is generally a group that holds slaves in

7    Mauritania, not a group that is subject to slavery there.

8        Second, the IJ also reasonably relied on an inconsistency

9    concerning Ndongo’s ability to marry.       In a supplemental

10   affidavit to his asylum application, Ndongo stated that, as a

11   slave, he was not permitted to marry.    Ndongo argues that he

12   meant he was not permitted to marry absent his master’s consent.

13   While a plausible explanation, Ndongo has not demonstrated that

14   a reasonable fact-finder would be compelled to accept it.   See

15   id ; Chen v. U.S. Attorney General, 454 F.3d 103, 106-07 (2d

16   Cir. 2006).

17       Third, the adverse credibility determination is further

18   bolstered by inconsistencies concerning Ndongo’s escape from

19   Mauritania, Ndongo gave no explanation for his testimony that

20   a merchant named Mustafa Wood was the only person who helped

21   him escape, while his supplemental affidavit reflected that

22   Oula Bass helped him flee.



                                    5
1         Given the inconsistencies that called Ndongo’s claim into

2    question, the agency did not err in finding that Ndongo’s lack

3    of   reliable    corroborating    evidence      was   insufficient   to

4    rehabilitate his testimony.        See Biao Yang v. Gonzales, 496

5    F.3d 268, 273 (2d Cir. 2007).     The IJ reasonably gave diminished

6    weight to letters from Ndongo’s brother and a psychologist.

7    The letter purportedly from Ndongo’s brother does not identify

8    the drafter by name, was not notarized, did not describe how

9    Ndongo escaped Mauritania, and listed an inconsistent return

10   addressee.     See Matter of H-L-H- & Z-Y- Z-, 25 I. & N. Dec. 209,

11   215 (B.I.A. 2010) (agency can give little weight to document

12   drafted   by     interested     witness   not     subject    to   cross

13   examination), rev’d on other grounds by Hui Lin Huang v. Holder,

14   677 F.3d 130 (2d Cir. 2012).      And while the agency credited the

15   psychologist’s diagnosis of Posttraumatic Stress Disorder, it

16   reasonably gave diminished weight to the historical facts the

17   psychologist’s letter recited because the psychologist had no

18   independent knowledge of events.       See Y.C. v. Holder, 741 F.3d

19   324, 334 (2d Cir. 2013) (“We defer to the agency’s determination

20   of the weight afforded to an alien’s documentary evidence.”).

21        Given     the   multiple   inconsistencies,      the   implausible

22   testimony, and Ndongo’s lack of reliable corroboration, it

23   cannot be said “that no reasonable fact-finder could make such

                                        6
1    an adverse credibility ruling.”      Xiu Xia Lin, 534 F.3d at 167.

2    Because asylum, withholding of removal, and CAT relief were all

3    based on the same factual predicate, the adverse credibility

4    determination is dispositive.       Paul v. Gonzales, 444 F.3d 148,

5    156-57 (2d Cir. 2006).

6        For the foregoing reasons, the petition for review is

7    DENIED.    As we have completed our review, any stay of removal

8    that the Court previously granted in this petition is VACATED,

9    and any pending motion for a stay of removal in this petition

10   is DISMISSED as moot.    Any pending request for oral argument

11   in this petition is DENIED in accordance with Federal Rule of

12   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

13   34.1(b).

14                                 FOR THE COURT:
15                                 Catherine O’Hagan Wolfe, Clerk




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