         11-905-ag
         Diallo v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A094 813 513
                             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 22nd day of November, two thousand eleven.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                ROBERT A. KATZMANN,
 9                DENNY CHIN,
10                    Circuit Judges.
11       _____________________________________
12
13       ABDOUL GADIRI DIALLO,
14                Petitioner,
15
16                          v.                                  11-905-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Bibiana C. Andrade, New York,
24                                     New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Derek C. Julius, Senior
28                                     Litigation Director; Theo Nickerson,
29                                     Trial Attorney, Office of
 1                          Immigration Litigation, United
 2                          States Department of Justice,
 3                          Washington, D.C.
 4
 5       UPON DUE CONSIDERATION of this petition for review of a

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

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

 8   is DENIED.

 9       Petitioner Abdoul Gadiri Diallo, a native and citizen

10   of Guinea, seeks review of a February 18, 2011, order of the

11   BIA, affirming an April 1, 2009, decision of an Immigration

12   Judge (“IJ”), which denied his application for asylum,

13   withholding of removal, and relief under the Convention

14   Against Torture (“CAT”).   In re Abdoul Gadiri Diallo, No.

15   A094 813 513 (B.I.A. Feb. 18, 2011), aff’g No. A094 813 513

16   (Immig. Ct. N.Y. City Apr. 1, 2009).   We assume the parties’

17   familiarity with the underlying facts and procedural history

18   in this case.

19       Under the circumstances of this case, we review both

20   the BIA’s and the IJ’s decisions, including the portions of

21   the IJ’s decision not expressly discussed by the BIA.     See

22   Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).

23   The applicable standards of review are well-established.

24   See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562



                                   2
 1   F.3d 510, 513 (2d Cir. 2009).       For applications like this

 2   one, governed by the REAL ID Act of 2005, the agency may

 3   base a credibility finding on an asylum applicant’s

 4   demeanor, the plausibility of his account, and

 5   inconsistencies in his statements, without regard to whether

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

 7   § 1158(b)(1)(B)(iii); Matter of J-Y-C-, 24 I. & N. Dec. 260,

 8   265 (B.I.A. 2007).   We defer to an IJ’s credibility

 9   determination “unless, from the totality of the

10   circumstances, it is plain that no reasonable fact-finder

11   could make such an adverse credibility ruling.”         Xiu Xia Lin

12   v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).         Analyzed

13   under the REAL ID Act, the agency’s adverse credibility

14   determination is supported by substantial evidence.

15       In finding Diallo not credible, the agency reasonably

16   relied on inconsistencies in the record regarding his

17   position in the student council.       See 8 U.S.C.

18   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167; Matter

19   of J-Y-C-, 24 I. & N. Dec. at 265.       Diallo attempted to

20   explain the conflict between his testimony that he was the

21   general secretary and his application indicating that he was

22   arrested with the general secretary by arguing that the


                                     3
 1   preparer of the application may have made a mistake.     The

 2   agency was entitled, however, to disregard this explanation

 3   because, upon review of the record, it would not necessarily

 4   be compelling to a reasonable fact-finder.     See Majidi v.

 5   Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).

 6          The agency also reasonably relied on inconsistencies in

 7   the record regarding where Diallo received medical treatment

 8   in finding him not credible.    See 8 U.S.C.

 9   § 1158(b)(1)(B)(iii).    As the agency noted, Diallo initially

10   testified that his uncle secured his release so that he

11   could be treated at the hospital, later testified that he

12   received treatment at home, and yet later testified that he

13   registered at Wichita State “after [he] got out of the

14   hospital.”    Notwithstanding Diallo’s argument to the

15   contrary, these inconsistencies were a proper basis for the

16   agency’s adverse credibility determination.     See 8 U.S.C.

17   § 1158(b)(1)(B)(iii); Matter of J-Y-C-, 24 I. & N. Dec. at

18   260.

19          Similarly, the agency reasonably relied on omissions in

20   Diallo’s uncle’s letter in finding him not credible.     See

21   Xiu Xia Lin, 534 F.3d at 166 n.3.    Diallo testified that his

22   uncle was fired from his government job, imprisoned, and had


                                    4
 1   his property destroyed in retaliation for helping Diallo

 2   flee Guinea; however, Diallo’s uncle’s letter fails to

 3   mention any of these events.   Although Diallo argues that he

 4   should not be faulted for his uncle’s mistake, the agency

 5   was entitled to rely on this omission in finding him not

 6   credible.   See Xiu Xia Lin, 534 F.3d at 166 n.3; see Majidi,

 7   430 F.3d at 80-81.    Having found Diallo not credible, the

 8   agency reasonably noted that his failure to provide

 9   corroborative evidence further undermined his credibility,

10   especially given Diallo’s concession that medical records

11   were available.   See Biao Yang v. Gonzales, 496 F.3d 268,

12   273 (2d Cir. 2007).

13       In addition, the agency did not err in finding that

14   Diallo failed to establish a well-founded fear of

15   persecution based on his Union for Progress and Renewal

16   (“UPR”) activities in the United States.    See Jian Xing

17   Huang v. INS, 421 F.3d 125, 128-29 (2d Cir. 2005).    While

18   Diallo contends that the IJ erred by discrediting his UPR

19   membership card due to a lack of foundation, the weight

20   afforded to documentary evidence is generally a matter of

21   agency discretion.    Xiao Ji Chen v. U.S. Dep’t of Justice,

22   471 F.3d 315, 342 (2d Cir. 2006); see In re C-Y-Z-, 21 I. &

23   N. Dec. 915, 920 (B.I.A. 1997).    Given that Diallo failed to
                                    5
 1   offer any other evidence of his UPR membership, the agency

 2   did not err in its decision to give diminished evidentiary

 3   weight to his UPR membership card.   See Qin Wen Zheng v.

 4   Gonzales, 500 F.3d 143, 146-49 (2d Cir. 2007).

 5       Similarly, the agency’s finding that Diallo failed to

 6   show a nexus between the persecution he feared on account of

 7   his UPR membership and a protected ground is supported by

 8   substantial evidence.   See 8 U.S.C. § 1252(b)(4)(B).     As the

 9   agency noted, Diallo’s testimony indicated that he may not

10   have had any political motive in joining the UPR.   Under

11   such circumstances, the agency’s finding that Diallo failed

12   to show a nexus between his alleged fear of persecution and

13   his UPR membership, is supported by substantial evidence.

14   See Siewe v. Gonzales, 480 F.3d 160, 166-68 (2d Cir. 2007);

15   Ahmed v. Ashcroft, 286 F.3d 611, 612 (2d Cir. 2002).

16       In light of the agency’s adverse credibility and burden

17   findings, it did not err in denying Diallo’s applications

18   for relief.   See Xiu Xia Lin, 534 F.3d at 167; Paul v.

19   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006) (holding that the

20   agency need not separately analyze a withholding of removal

21   claim based on the same facts as an applicant’s asylum

22   claim); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

23   520, 523 (2d Cir. 2006) (same, with respect to CAT).
                                   6
 1       We decline to consider Diallo’s argument that the

 2   agency erred by refusing to admit some evidence of country

 3   conditions, as it was not raised before the agency.      See Lin

 4   Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 120 (2d Cir.

 5   2007).

 6       For the foregoing reasons, the petition for review is

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

 8   removal that the Court previously granted in this petition

 9   is VACATED, and any pending motion for a stay of removal in

10   this petition is DENIED as moot.    Any pending request for

11   oral argument in this petition is DENIED in accordance with

12   Federal Rule of Appellate Procedure 34(a)(2), and Second

13   Circuit Local Rule 34.1(b).

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




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