         11-3683
         Barry v. Holder

                                                                                           BIA
                                                                                     Brennan, IJ
                                                                                   A093 434 356

                                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 for
 2       the Second Circuit, held at the Daniel Patrick Moynihan United
 3       States Courthouse, 500 Pearl Street, in the City of New York, on
 4       the 18th day of July, two thousand twelve.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                ROBERT D. SACK,
10                RAYMOND J. LOHIER, JR.,
11                     Circuit Judges.
12       _____________________________________
13
14       ELHADJ OUMAR BARRY,
15                Petitioner,
16
17                         v.                                   11-3683
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:                Gary J. Yerman, Yerman            & Associates,
25                                      LLC, New York, N.Y.
26
27       FOR RESPONDENT:                Stuart F. Delery, Acting Assistant
28                                      Attorney General; Carl McIntyre, Jr.,
29                                      Assistant Director; Marion E. Guyton,
 1                              Trial Attorney; Office of Immigration
 2                              Litigation,   Civil  Division,   United
 3                              States    Department    of     Justice,
 4                              Washington, D.C.
 5
 6       UPON DUE CONSIDERATION of this petition for review of a
 7   Board of Immigration Appeals (“BIA”) decision, it is hereby
 8   ORDERED, ADJUDGED, AND DECREED that the petition for review is

 9   DENIED.
10       Petitioner Elhadj Oumar Barry, a native and citizen of

11   Guinea, seeks review of an August 25, 2011, decision of the BIA

12   affirming the March 30, 2010, decision of Immigration Judge

13   (“IJ”)    Noel   Brennan   denying       his   application   for   asylum,

14   withholding of removal and relief under the Convention Against

15   Torture (“CAT”).     In re Elhadj Oumar Barry, No. A093 434 356

16   (B.I.A. Aug. 25, 2011), aff’g No. A093 434 356 (Immig. Ct. N.Y.

17   City Mar. 30, 2010).       We assume the parties’ familiarity with

18   the underlying facts and procedural history of the case.

19       Under the circumstances of this case, this Court reviews

20   both the IJ’s and the BIA’s opinions.            See Jigme Wangchuck v.

21   DHS, 448 F.3d 524, 528 (2d Cir. 2006).          The applicable standards

22   of review are well-established.          See 8 U.S.C. § 1252(b)(4)(B);

23   see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.

24   2008) (per curiam).

25       Barry’s asylum application is governed by the REAL ID Act.


                                          2
 1   Therefore    the   agency    may    (considering      the     totality   of   the

 2   circumstances)     base     a   credibility         finding    on   an   asylum

 3   applicant’s demeanor, the plausibility of his account, and

 4   inconsistencies in his statements, without regard to whether

 5   they go “to the heart of the applicant’s claim.”                      8 U.S.C.

 6   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.

 7       Substantial evidence supports the agency’s determination

 8   that Barry did not testify credibly regarding his claim that he

 9   was persecuted in Guinea on the basis of his political opinion.

10   The IJ reasonably relied on inconsistencies in the record.                    See

11   8 U.S.C.§ 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at

12   163-64, 166-67.      As the agency noted, Barry’s testimony was

13   internally    inconsistent         and       contradicted     his   documentary

14   evidence regarding whether and how long he had lived in the

15   United States before his November 2005 admission as a non-

16   immigrant parolee, as well as the details of his November 2005

17   arrest, detention, release and flight to the United States, and

18   the date of his brother’s death.              Barry’s explanations for these

19   inconsistencies did not compel the conclusion that Barry was

20   testifying credibly.        See Majidi v. Gonzales, 430 F.3d 77, 80-81

21   (2d Cir. 2005) (finding that an agency need not credit an

22   applicant’s explanations unless those explanations would compel


                                              3
 1   a reasonable fact-finder to do so).                    These inconsistencies

 2   provide substantial support for the agency’s adverse credibility

 3   determination.       See 8 U.S.C. § 1158(b)(1)(B)(iii) (providing

 4   that    the   agency   may     base   a       credibility   determination    on

 5   inconsistencies between the applicants statements, and “the

 6   consistency of such statements with other evidence of record”).

 7          The adverse credibility determination is reinforced by the

 8   IJ’s demeanor finding, to which we give particular deference.

 9   See Zhou Yun Zhang v. INS, 386 F.3d 66, 73-74 (2d Cir. 2004),

10   overruled on other grounds by Shi Liang Lin v. U.S. Dep’t of

11   Justice, 494 F.3d 296 (2d Cir. 2007).                The IJ reasonably relied

12   in     part   on   demeanor,    noting        that   Barry’s    testimony   was

13   frequently hesitant, evasive and non-responsive.                  I n   t h e

14   circumstances, the IJ reasonably relied on Barry’s failure to

15   provide corroborating evidence of persecution. See Biao Yang v.

16   Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).                    The agency gave

17   limited weight to the letter from Barry’s wife, a ruling that is

18   entitled to particular deference. See Xiao Ji Chen v. U.S. Dep’t

19   of Justice, 471 F.3d 315, 342 (2d Cir. 2006).                   As the agency

20   observed, Barry testified that his wife was uneducated, had paid

21   someone to write the letter for her and could not be certain of

22   its contents.


                                               4
 1          Given the inconsistencies, the failure to corroborate,                   and

 2   this    Court’s     deference     to    the    agency’s    findings       regarding

 3   demeanor, the agency’s adverse credibility determination was

 4   supported      by       substantial       evidence.            See    8      U.S.C.

 5   § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 163-64.

 6   Accordingly,      the    agency    did        not   err   in   denying      Barry’s

 7   application for asylum, withholding of removal and CAT relief.

 8   See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

 9          For the foregoing reasons, the petition for review is

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

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

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

13   DISMISSED as moot. Any pending request for oral argument in this

14   petition is DENIED in accordance with Federal Rule of Appellate

15   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

16                                          FOR THE COURT:
17                                          Catherine O’Hagan Wolfe, Clerk




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