19-3629 Abaserbi v. Garland

BIA Wright, IJ A205 789 139 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 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 23rd day of February, two thousand twenty- 5 two. 6 7 PRESENT: 8 GERARD E. LYNCH, 9 JOSEPH F. BIANCO, 10 BETH ROBINSON, 11 Circuit Judges. 12 _____________________________________ 13 14 SADAM USMAN ABASERBI, 15 Petitioner, 16 17 v. 19-3629 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Stanley A. Cohen, Esq., 25 New York, NY. 26 27 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 28 Assistant Attorney General; Zoe J. 1 Heller, Senior Litigation Counsel; 2 Katherine A. Smith, Trial 3 Attorney, Office of Immigration 4 Litigation, United States 5 Department of Justice, Washington, 6 DC.

7 UPON DUE CONSIDERATION of this petition for review of a

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

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

10 is DENIED.

11 Petitioner Sadam Usman Abaserbi, a native and citizen of

12 Ethiopia, seeks review of a September 30, 2019, decision of

13 the BIA affirming a February 8, 2018, decision of an

14 Immigration Judge (“IJ”) denying asylum, withholding of

15 removal, and protection under the Convention Against Torture

16 (“CAT”). In re Sadam Usman Abaserbi, No. A 205 789 139

17 (B.I.A. Sept. 30, 2019), aff’g No. A 205 789 139 (Immig. Ct.

18 N.Y. City Feb. 8, 2018). We assume the parties’ familiarity

19 with the underlying facts and procedural history.

20 We have considered both the IJ’s and the BIA’s opinions

21 “for the sake of completeness.” Wangchuck v. Dep’t of

22 Homeland Sec.,

(2d Cir. 2006). We review

23 adverse credibility determinations for substantial evidence,

24 Hong Fei Gao v. Sessions,

(2d Cir. 2018), and

2 1 treat the agency’s findings of fact as “conclusive unless any

2 reasonable adjudicator would be compelled to conclude to the

3 contrary,”

(b)(4)(B).

4 An asylum applicant, like Abaserbi, who does not allege

5 past persecution, has the burden to demonstrate an

6 objectively reasonable fear of future persecution. See

7

(b)(1)(B)(i);

(a), (b)(1) &

8 (2); Ramsameachire v. Ashcroft,

(2d Cir.

9 2004) (requiring applicant to “present credible testimony

10 that he subjectively fears persecution and establish that his

11 fear is objectively reasonable”). As the governing statute

12 provides:

13 The testimony of the applicant may be sufficient to 14 sustain the applicant’s burden without 15 corroboration, but only if . . . the applicant’s 16 testimony is credible, is persuasive, and refers to 17 specific facts sufficient to demonstrate that the 18 applicant is a refugee. In determining whether the 19 applicant has met the . . . burden, the trier of 20 fact may weigh the credible testimony along with 21 other evidence of record. Where the trier of fact 22 determines that the applicant should provide 23 evidence that corroborates otherwise credible 24 testimony, such evidence must be provided unless the 25 applicant does not have the evidence and cannot 26 reasonably obtain the evidence. 27 28

(b)(B)(ii).

29 We find no error in the agency’s conclusion that Abaserbi

3 1 did not meet his burden of proof. The agency did not err in

2 relying on an inconsistency to find Abaserbi not credible,

3 because “a trier of fact may base a credibility determination

4 on” inconsistencies within and between an applicant’s

5 “written and oral statements (whenever made and whether or

6 not under oath and considering the circumstances under which

7 the statements were made).”

§ 1158(b)(1)(B)(iii).

8 Abaserbi was inconsistent about the circumstances of his

9 father’s arrest, testifying before the IJ that he was present

10 when the police took his father from the family’s home, which

11 conflicted with his prior credible fear interview statement

12 that he “was not there when [his father] was arrested,” that

13 his father was “taken from the neighborhood,” and that he did

14 not know the circumstances. CAR 394-95. Because his father’s

15 alleged arrest for suspected involvement in collecting money

16 for the Oromo Liberation Front was the basis of Abaserbi’s

17 own fear of persecution should he be returned to Ethiopia,

18 the inconsistency constitutes substantial evidence for the

19 agency’s adverse credibility ruling. See Likai Gao v. Barr,

20

, 145 n.8 (2d Cir. 2020) (“[T]his Court [has]

21 recognized that even a single inconsistency might preclude an

4 1 alien from showing that an IJ was compelled to find him

2 credible.”). Given Abaserbi’s concession that he understood

3 the questions at the interview, even though the interview was

4 not conducted in his native language, and the fact that the

5 interview record reflects that he was responsive to the

6 questions asked, the agency did not err in deeming the

7 interview record reliable. See Ming Zhang v. Holder, 585

, 725–26 (2d Cir. 2009) (discussing indicia of

9 reliability).

10 The agency also did not err in requiring additional

11 corroboration for Abaserbi’s claim. See 8 U.S.C.

12 § 1158(b)(1)(B)(ii) (allowing IJ to require corroboration of

13 even credible testimony); Wei Sun v. Session,

,

14 28–29 (2d Cir. 2018). Abaserbi alleged that the Ethiopian

15 authorities continued to seek him out but did not submit a

16 recent letter from his mother to confirm that fact or provide

17 a letter from his brother to document his brother’s alleged

18 problems with authorities stemming from his Oromo ethnicity.

19 Given Abaserbi’s ability to obtain other documents from

20 Ethiopia, the record does not compel a conclusion that such

21 letters were unavailable. See

(b)(4) (“No

5 1 court shall reverse a determination made by a trier of fact

2 with respect to the availability of corroborating evidence

3 . . . unless the court finds . . . that a reasonable trier of

4 fact is compelled to conclude that such corroborating

5 evidence is unavailable.”).

6 Given the credibility issue related to the nature of

7 Abaserbi’s claim and his failure to corroborate his claim

8 that the Ethiopian authorities continue to look for him,

9 Abaserbi’s remaining evidence does not compel a conclusion

10 contrary to that of the agency. See 8 U.S.C.

11 § 1252(b)(4)(B). Because Abaserbi failed to meet his burden

12 of proof for asylum, he “necessarily” failed to meet the

13 higher burden for withholding of removal and CAT relief. See

14 Lecaj v. Holder,

, 119–20 (2d Cir. 2010).

15 For the foregoing reasons, the petition for review is

16 DENIED. All pending motions and applications are DENIED and

17 stays VACATED.

18 FOR THE COURT: 19 Catherine O’Hagan Wolfe, 20 Clerk of Court

6