Bah v. Holder

U.S. Court of Appeals for the Second Circuit
Bah v. Holder, 535 F. App'x 48 (2d Cir. 2013)
Reenaraggi, Lynch, Lohier

Bah v. Holder

Opinion

SUMMARY ORDER

Hassana Thierno Bah, a native and citizen of Guinea, seeks review of an April 4, 2012, decision of the BIA affirming the April 19, 2010, decision of Immigration *49 Judge (“IJ”) Douglas Schoppert, which pretermitted his application for asylum as untimely, and denied his applications for withholding of removal and relief under the Convention Against Torture (“CAT”). In re Hassana Thierno Bah, No. A098 228 796 (B.I.A. Apr. 4, 2012), aff'g No. A098 228 796 (Immig. Ct. N.Y. City Apr. 19, 2010). We assume the parties’ familiarity with the underlying facts and procedural history of this case.

Under the circumstances of this case, we have considered 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) (internal quotation marks omitted). The applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B); see also Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 334-35 (2d Cir. 2006). As Bah does not challenge the agency’s denial of CAT relief, this memorandum addresses only asylum and withholding of removal.

I. Asylum

We do not have jurisdiction to review the agency’s finding that Bah’s asylum application was untimely under 8 U.S.C. § 1158(a)(2)(B), or its finding that Bah’s alleged medical problems did not excuse the application’s untimeliness under 8 U.S.C. § 1158(a)(2)(D). See 8 U.S.C. § 1158(a)(3). While we retain jurisdiction to review constitutional claims and questions of law, see 8 U.S.C. § 1252(a)(2)(D), Bah has raised no such claims. Bah challenges only the IJ’s factual findings regarding whether his alleged medical problems affected his ability to file a timely application, which we lack jurisdiction to review. See Liu v. INS, 508 F.3d 716, 721 (2d Cir. 2007) (“a petitioner cannot us[e] the rhetoric of a constitutional claim or question of law to disguise what is essentially a quarrel about fact-finding or the exercise of discretion” (internal quotation marks omitted)).

II. Withholding of Removal

The agency reasonably denied withholding of removal based on a finding that Bah lacked credibility. A pre-REAL ID Act 1 adverse credibility determination must be based on “specific, cogent” reasons that bear a “legitimate nexus” to the finding. See Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir. 2003) (internal quotation marks omitted) (setting forth pre-REAL ID Act credibility standard). The agency reasonably found that Bah lacked credibility based on his inconsistent testimony regarding his medical condition, his activities in Guinea after his alleged detention, his explanation for why he did not seek asylum elsewhere during his international travels, and his repeated trips to Guinea, 2 *50 as well as Bah’s failure to corroborate his testimony. These inconsistent aspects of Bah’s testimony were material to his claim of past persecution and alleged fear of future persecution. We will not disturb an adverse credibility finding such as this that is based on “specific examples ... about matters material to [the] claim of persecution.” Zhou Yun Zhang v. INS, 386 F.3d 66, 74 (2d Cir. 2004), overruled in part on other grounds, Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007).

For the foregoing reasons, the petition for review is DISMISSED in part and DENIED in part. As we have completed our review, the pending motion for a stay of removal in this petition is DENIED as moot.

1

. Because Bah filed his asylum application in 2004, the REAL ID Act does not apply in this case. See Chuilu Liu v. Holder, 575 F.3d 193, 197 n. 1 (2d Cir. 2009) (noting that ‘‘[t]he REAL ID Act’s credibility standard applies to applications filed on or after May 11, 2005”).

2

. To the extent Bah argues that Kone v. Holder precludes reliance on his travels outside of Guinea, that case stands only for the proposition that where past persecution already has been established, a return trip will not, on its own, rebut the presumption of a well-founded fear. 596 F.3d 141, 149-150 (2d Cir. 2010). In the present case, however, Bah has not established past persecution due to his lack of credibility. Accordingly, the agency reasonably relied on Bah’s multiple trips in and out of Guinea in the years immediately following the alleged persecution as evidence that he failed to establish a credible fear. See Wensheng Yan v. Mukasey, 509 F.3d 63, 68 n. 2 (2d Cir. 2007) (finding reasonable the IJ’s con- *50 elusion that it was "implausible that a person seeking to flee from repression ... would have repeatedly put himself in situations where he encountered legal authorities checking his identity”).

Reference

Full Case Name
Hassana Thierno BAH, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent
Status
Unpublished