Cisse v. Holder

U.S. Court of Appeals for the Second Circuit
Cisse v. Holder, 571 F. App'x 40 (2d Cir. 2014)

Cisse v. Holder

Opinion

SUMMARY ORDER

Lacina Cisse, a native and citizen of Ivory Coast, seeks review of an April 30, 2013, decision of the BIA affirming an Immigration Judge’s (“IJ”) July 6, 2011, denial of asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Lacina Cisse, No. A087 448 148 (B.I.A. Apr. 30, 2013), aff'g No. A087 448 148 (Immig. Ct. N.Y. City Jul. 6, 2011). We assume the parties’ familiarity with the underlying facts and procedural history of this case.

Under the circumstances of this case, we have reviewed the IJ’s decision as the final agency determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008). The applicable standards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).

For asylum applications, like Cisse’s, governed by the REAL ID Act, the agency may, “[considering the totality of the circumstances,” base a credibility finding on omissions and inconsistencies in the applicant’s statements and other record evidence without regard to whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64, 166 n. 3. Substantial evidence supports the agency’s adverse credibility determination.

The record supports four of the IJ’s five inconsistency findings. Cisse’s application omitted any reference to a death threat by police in 2004. This death threat was a significant detail, and its absence from Cisse’s application was a proper factor for consideration in light of the other inconsistencies. See Xiu Xia Lin, 534 F.3d at 163-64.

Cisse’s application stated that he was beaten in 2008 “during [his] arrest,” but his testimony reframed the incident, making no mention of any harm during arrest, and instead, alleging he was beaten every day for two weeks during his detention. The IJ was not required to credit Cisse’s explanation that the preparer of his application must have made a mistake. As the IJ explained, - the Government raised the issue of whether any corrections needed to be made to Cisse’s asylum application before the merits hearing began, and Cisse’s counsel, who had represented him for over two years, responded that no changes were needed. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005); see also Hoodho v. Holder, 558 F.3d 184, 191 (2d Cir. 2009).

Cisse also testified that officials told him that he would be killed if he was arrested again, while his application merely stated that he was told he would be contacted if he “was needed by the authorities].” Cisse’s explanation was non-responsive because it did not explain why he testified that he was specifically told he would be killed, and not just arrested. Thus, the IJ was not compelled to credit his explanation. See Majidi, 430 F.3d at 80-81.

In addition, Cisse’s responses to questions about his future fear were difficult to pin down. Cisse claimed devotion to the RDR political party, but he resisted returning to Ivory Coast even after a member of the RDR attained power. Although he was asked several times to clarify why he could not return to Ivory Coast when a leader who was sympathetic to his political beliefs and ethnic group was in power, Cisse gave a variety of answers and ultimately admitted he did not have any evi *42 dence to support his allegation that his political opponents had retained authority.

The final inconsistency finding by the IJ is not supported by the record. The IJ stated that Cisse’s application said that police detained him at a political meeting in 2008, but that he testified that police stopped him as he walked home. The IJ misstated the record. Cisse testified that police stopped him “before [he was] going home” and reiterated on cross-examination that he was “about to go home” when police arrived. Despite this error, given the other inconsistencies cited by the IJ, as well as the lack of corroboration and Cisse’s false statements to a consulate official discussed below, this one erroneous finding does not require remand.

Cisse’s admission that he lied to a U.S. consular official in Mali to secure a visa, despite being under no immediate threat of harm, further supports the adverse credibility determination. Lin Zhong v. U.S. DOJ, 480 F.3d 104, 127 (2d Cir. 2006) (“an IJ’s application of the maxim falsus in uno, falsus in omnibus [false in one thing, false in everything] may at times be appropriate”). Additionally, Cisse has waived any challenge to the IJ’s corroboration finding by not raising it in his brief. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n. 7 (2d Cir. 2005). The IJ’s finding that there was a lack of corroboration remains a valid basis supporting the denial of relief. See Shunfu Li, 529 F.3d at 146-47.

Considering Cisse’s prior falsehoods, the inconsistencies in his claims, and the lack of corroboration, the IJ’s adverse credibility determination is supported by the “totality of the circumstances.” Xiu Xia Lin, 534 F.3d at 167. As all of Cisse’s claims share the same factual predicate, the adverse credibility determination is disposi-tive of asylum, withholding of removal, and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 155-57 (2d Cir. 2006).

For the foregoing reasons, the petition for review is DENIED. As we have completed our review, Cisse’s pending motion for a stay is DISMISSED as moot.

Reference

Full Case Name
Lacina CISSE, AKA Alfousseiny Dembele, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent
Status
Unpublished