21-6557 Alassane-N’Diaye v. Garland BIA Baumgarten, IJ A201 756 202

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 9th day of September, two thousand twenty-four.

PRESENT: WILLIAM J. NARDINI, EUNICE C. LEE, SARAH A. L. MERRIAM, Circuit Judges. _____________________________________

MOUSSA ALASSANE-N’DIAYE, Petitioner,

v. 21-6557 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Murray D. Hilts, Law Offices of Murray D. Hilts, San Diego, CA. FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant Attorney General; Paul Fiorino, Senior Litigation Counsel; Virginia Lum, 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 Moussa Alassane-N’Diaye, a native and citizen of Mauritania,

seeks review of a May 6, 2021, decision of the BIA affirming an April 16, 2020,

decision of an Immigration Judge (“IJ”) denying his application for asylum,

withholding of removal, and relief under the Convention Against Torture

(“CAT”). In re Moussa Alassane-N’Diaye, No. A201 756 202 (B.I.A. May 6, 2021),

aff’g No. A201 756 202 (Immigr. Ct. Buffalo Apr. 16, 2020). We assume the parties’

familiarity with the underlying facts and procedural history.

Under the circumstances, we have reviewed the IJ’s decision as

supplemented by the BIA. See Yan Chen v. Gonzales,

(2d Cir.

2005). We review adverse credibility determinations “under the substantial

evidence standard.” Hong Fei Gao v. Sessions,

(2d Cir. 2018).

“[T]he administrative findings of fact are conclusive unless any reasonable 2 adjudicator would be compelled to conclude to the contrary.”

(b)(4)(B).

“Considering the totality of the circumstances, and all relevant factors, a

trier of fact may base a credibility determination on the demeanor, candor, or

responsiveness of the applicant or witness, . . . the consistency between the

applicant’s or witness’s written and oral statements . . . , the internal consistency

of each such statement, [and] the consistency of such statements with other

evidence of record . . . without regard to whether an inconsistency, inaccuracy, or

falsehood goes to the heart of the applicant’s claim, or any other relevant factor.”

§ 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility determination unless,

from the totality of the circumstances, it is plain that no reasonable fact-finder

could make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey,

(2d Cir. 2008); accord Hong Fei Gao,

. Substantial evidence

supports the agency’s adverse credibility determination.

The agency reasonably relied on inconsistencies in Alassane-N’Diaye’s

statements. See

(b)(1)(B)(iii). Alassane-N’Diaye gave precise

dates in his application and testimony and was inconsistent as to when he left

Mauritania. During the IJ hearing, he initially testified that he left Mauritania for

3 Senegal on September 30, 2019. But his initial written declaration stated that he

left Mauritania a year earlier, on September 30, 2018. When confronted with the

discrepancy, he repeated that he left Mauritania for Senegal on September 30, 2019;

but, when the IJ pointed out that he had been in U.S. immigration custody since

June 2019, he reverted to the September 2018 date. Later, when asked why his

initial I-589 application stated he left Mauritania on July 30, 2018, he changed dates

again and said he left on June 30, 2018. The IJ was not required to accept his

explanation that he meant to say September 30, 2018. 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)); see also Biao Yang v. Gonzales,

(2d Cir.

2007) (upholding adverse credibility determination when applicant “appeared to

be simply making up testimony when confronted by inconsistencies” (quotation

marks omitted)).

Next, the IJ reasonably relied on Alassane-N’Diaye’s failure to respond to

certain questions. “[A] trier of fact may base a credibility determination on the

demeanor, candor, or responsiveness of the applicant . . . .” 8 U.S.C.

4 § 1158(b)(1)(B)(iii). We generally defer to such findings because an IJ “is in the

best position to discern . . . whether a witness . . . was . . . attempting truthfully to

recount what he recalled of key events or struggling to remember the lines of a

carefully crafted ‘script’; and whether inconsistent responses are the product of

innocent error or intentional falsehood.” Majidi,

n.1 (quotation

marks omitted). And the record supports the IJ’s finding. For example, when

asked when his employer threatened to kill him, Alassane-N’Diaye was initially

nonresponsive, and eventually said he could not give a date or even a timeframe

for the threat because he is uneducated and bad with dates. The IJ reasonably

rejected this explanation because Alassane-N’Diaye had confirmed that he

understood the interpreter and he gave exact dates for other events.

.

The IJ reasonably inferred that the ability to give some precise dates and not others

indicated that Alassane-N’Diaye had memorized a limited number of dates and

details.

at 81 n.1; see also Siewe v. Gonzales,

(2d Cir. 2007) (“So

long as there is a basis in the evidence for a challenged inference, we do not

question whether a different inference was available or more likely.”).

Finally, the IJ reasonably found that Alassane-N’Diaye failed to rehabilitate

his testimony with corroborating evidence. “An applicant’s failure to corroborate

5 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,

. Alassane-N’Diaye had no

documentary evidence to corroborate his allegations of past harm, despite his

application and testimony mentioning numerous family members and friends

who helped him escape from his employers and could corroborate his experiences.

In sum, given the inconsistent testimony as to when he left Mauritania, the

lack of responsiveness and appearance that he was testifying from a script rather

than experience, and the lack of corroboration, substantial evidence supports the

agency’s adverse credibility determination. See

(b)(1)(B)(iii); Likai

Gao v. Barr,

, 145 n.8 (2d Cir. 2020) (“[E]ven a single inconsistency

might preclude an alien from showing that an IJ was compelled to find him

credible. Multiple inconsistencies would so preclude even more forcefully.”); Biao

Yang,

; Majidi,

n.1. The adverse credibility

determination is dispositive of asylum, withholding of removal, and CAT relief

because all forms of relief are based on the same factual predicate. See Hong Fei

Gao,

. Thus, we do not reach Alassane-N’Diaye’s challenges to the

IJ’s alternative findings. See INS v. Bagamasbad,

(1976) (“As a

6 general rule courts and agencies are not required to make findings on issues the

decision of which is unnecessary to the results they reach.”).

While Alassane-N’Diaye argues that he faces a risk of torture by White

Mauritanians more generally because he is a Black Mauritanian, he did not

provide argument or evidence to support that claim on appeal to the BIA, and he

does not acknowledge or challenge the BIA’s conclusion that he failed to

meaningfully argue a CAT claim. As the unaddressed waiver finding is the only

issue before us, we do not further address his allegation that he has a CAT claim

independent of credibility. See Prabhudial v. Holder,

, 555–56 (2d Cir.

2015) (“Where the agency properly applies its own waiver rule . . . we will not

permit an end around those discretionary agency procedures by addressing the

argument for the first time in a petition for judicial review” and “review is limited

to whether the BIA erred in deeming the argument waived.” (cleaned up)).

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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