20-180 Ouattara v. Garland BIA Christensen, IJ A 201 123 279 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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2nd day of June, two thousand twenty-two.

PRESENT: GERARD E. LYNCH, MICHAEL H. PARK, MYRNA PÉREZ, Circuit Judges. _____________________________________

SOUMAILA OUATTARA, Petitioner,

v. 20-180 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent.* _____________________________________

FOR PETITIONER: Gary J. Yerman, New York, NY.

FOR RESPONDENT: Jeffrey Bossert Clark, Acting Assistant Attorney General;

* The Clerk of Court is respectfully directed to amend the official caption as set forth above. Anthony P. Nicastro, Assistant Director; Yanal H. Yousef, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

Petitioner Soumaila Ouattara, a native and citizen of

Côte d’Ivoire, seeks review of a January 7, 2020, decision of

the BIA affirming an April 11, 2018, decision of an

Immigration Judge (“IJ”) denying Ouattara’s application for

asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). In re Soumaila Ouattara,

No. A201 123 279 (B.I.A. Jan. 7, 2020), aff’g No. A201 123

279 (Immig. Ct. N.Y. City Apr. 11, 2018). We assume the

parties’ familiarity with the underlying facts and procedural

history.

We review the IJ’s decision as modified by the BIA, i.e.,

minus the grounds on which the BIA did not rely. See Xue

Hong Yang v. U.S. Dep’t of Justice,

(2d

Cir. 2005). “We review the agency's factual findings,

2 including adverse credibility findings, under the substantial

evidence standard, which requires that they be supported by

reasonable, substantial and probative evidence in the record

when considered as a whole.” Hong Fei Gao v. Sessions,

(2d Cir. 2018) (quotation marks omitted). “[T]he

administrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to the

contrary.”

(b)(4)(B).

Substantial evidence supports the agency’s adverse

credibility determination. Ouattara alleged that, after an

attack on his father in 2005 and his mother in 2008, security

forces aligned with former president Laurent Gbagbo arrested

Ouattara in 2010 at a meeting of the opposition party, Rally

of the Republicans (“RDR”), detained him for five days, and

subjected him to beatings and other mistreatment before his

release. The agency reasonably relied on inconsistencies

between Ouattara’s statments and other evidence in the

record. See

(b)(1)(B)(ii). First,

Ouattara’s statements and his father’s letter were

inconsistent about whether his father was attacked in 2005 or

2010. Second, Ouattara testified that a pro-Gbagbo militia

3 attacked his father because of his father’s RDR membership,

but his father did not mention being involved in the RDR and

instead stated that he may have been targeted because he was

Muslim and a native of the northern region of Côte d’Ivoire.

The agency was not required to accept Ouattara’s allegation

that the inconsistencies were a result of translation error.

See Majidi v. Gonzales,

(2d Cir. 2005) (“A

petitioner must do more than offer a plausible explanation

for his inconsistent statements to secure relief; he must

demonstrate that a reasonable fact-finder would be compelled

to credit his testimony.” (quotation marks omitted) (emphasis

in original)). Third, Ouattara testified that his parents

contacted a police commissioner to obtain his release

following his arrest, but his application reflected that he

was released because of an RDR campaign and that his parents

contacted “someone” only after Ouattara’s release.

Ouattara’s assertion that “someone” was the police

commissioner does not resolve the discrepancy regarding the

timing or reason for his release. See id.; see also Siewe

v. Gonzales,

(2d Cir. 2007) (holding that

we defer to IJ’s plausible interpretation of the facts).

4 The agency also reasonably relied on Ouattara’s father’s

omissions. See, e.g., Xiu Xia Lin v. Mukasey,

,

166–67 (2d Cir. 2008) (upholding agency’s reliance on

omissions from supporting letters). Ouattara alleged that

his mother was attacked in 2008 and that he was arrested and

beaten in 2010, but his father’s letter does not mention his

mother’s attack and omits the details of Ouattara’s arrest

and beating. The agency did not err in relying on those

omissions because they relate to two primary bases for

Ouattara’s claim—his own arrest and the targeting of other

family members for supporting the RDR. Cf. Hong Fei Gao,

(omissions must be “weighed in light of the

totality of the circumstances and in the context of the record

as a whole”).

Finally, the agency also reasonably relied on the lack

of corroboration. “An applicant’s failure to corroborate his

or her testimony may bear on credibility, because the absence

of corroboration in general makes an applicant unable to

rehabilitate testimony that has already been called into

question.” Biao Yang v. Gonzales,

(2d Cir.

2007). Ouattara’s corroborating evidence consisted of

5 letters from his father and a friend. As discussed above,

his father’s letter contradicted his own statements.

Moreover, the agency was not required to credit either letter

because the authors were not available for cross examination

and Ouattara’s father was an interested party. See Y.C. v.

Holder,

(2d Cir. 2013) (“We generally defer

to the agency’s evaluation of the weight to be afforded an

applicant’s documentary evidence.”); Matter of H–L–H- & Z–Y–

Z–,

(B.I.A. 2010) (giving diminished

evidentiary weight to letters from “relatives and friends,”

because they were from interested witnesses not subject to

cross-examination), rev’d on other grounds by Hui Lin Huang

v. Holder,

(2d Cir. 2012).

In sum, the inconsistencies, omissions, and lack of

reliable corroboration provide substantial evidence for the

adverse credibility determination. See

(b)(1)(B)(iii); Xiu Xia Lin,

; Biao Yang,

. While CAT relief and withholding of removal

may be available notwithstanding an adverse credibility

ruling as to asylum, the adverse credibility determination is

here dispositive of asylum, withholding of removal, and CAT

6 relief because all three claims were based on the same factual

predicate. See Paul v. Gonzales,

, 156–57 (2d

Cir. 2006).

For the foregoing reasons, the petition for review is

DENIED. All pending motions and applications are DENIED and

stays VACATED.

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

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