         11-764-ag
         Ba v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A079 583 050
                         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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of New
 4       York, on the 14th day of June, two thousand twelve.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                ROBERT D. SACK,
10                REENA RAGGI,
11                     Circuit Judges.
12       _____________________________________
13
14       SAIDOU AMADOU BA,
15                Petitioner,
16
17                      v.                                      11-764-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:               Lawrence J. Hutchison, Columbus,
25                                     Ohio.
26
27       FOR RESPONDENT:               Tony West, Assistant Attorney
28                                     General; Greg D. Mack, Senior
29                                     Litigation Counsel; Lisa M. Damiano,
30                                     Trial Attorney, Office of
31                                     Immigration Litigation, United
32                                     States Department of Justice,
33                                     Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   is DENIED.

 5       Saidou Amadou Ba, a native and citizen of Mauritania,

 6   seeks review of a January 31, 2011, order of the BIA

 7   affirming the March 25, 2009, decision of Immigration Judge

 8   (“IJ”) Barbara A. Nelson, which denied his application for

 9   asylum, withholding of removal, and relief under the

10   Convention Against Torture (“CAT”).       In re Ba, No. A079 583

11   050 (B.I.A. Jan. 31, 2011), aff’g No. A079 583 050 (Immig.

12   Ct. N.Y. City Mar. 25, 2009).       We assume the parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15       Under the circumstances of this case, we have reviewed

16   the decision of the IJ as supplemented by the BIA.       See Yan

17   Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).          The

18   applicable standards of review are well-established.          See

19   Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008);

20   Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d Cir. 2007).

21       Because, as the government points out, Ba did not

22   raise, on appeal to the BIA, his claims that the agency

23   violated his due process right, and that he was prejudiced

                                     2
 1   by his former attorney’s ineffective assistance, those

 2   claims are unexhausted and we are without jurisdiction to

 3   consider them in our review of the January 2011 BIA

 4   decision.   See 8 U.S.C. § 1252(d)(1); Lin Zhong v. U.S.

 5   Dep’t of Justice, 480 F.3d 104, 119-20, 124-25 (2d Cir.

 6   2007); Theodoropoulos v. INS, 358 F.3d 162, 172-73 (2d Cir.

 7   2004).   Consequently, the only issue before us is the

 8   agency’s adverse credibility determination.

 9       Inconsistencies and other discrepancies in the evidence

10   are often sufficient to support an adverse credibility

11   determination, but they need not be fatal if they are minor

12   and isolated, and the testimony is otherwise generally

13   consistent, rational, and believable.   See Diallo v. BIA,

14   548 F.3d 232, 234 & n.1 (2d Cir. 2008)(applying standard

15   applicable to asylum claims filed before May 11, 2005,

16   effective date of REAL ID Act of 2005, Pub. L. No. 109-13,

17   119 Stat. 231).   In finding Ba not credible, the agency

18   depended primarily on a discrepancy between his supplemental

19   statement and testimony as to when and where he was arrested

20   1992, as well as on internal inconsistencies in his

21   testimony regarding when he decided to leave Mauritania.

22   When asked about the inconsistency regarding where and when


                                   3
 1   he was arrested in 1992, Ba stated only that there were

 2   “some things” he needed “to wait until . . . [his] hearing

 3   to explain.”   CAR at 384.   The agency reasonably declined to

 4   credit this explanation.     See Majidi v. Gonzales, 430 F.3d

 5   77, 80-81 (2d Cir. 2005).    Moreover, because this

 6   discrepancy went to the heart of Ba’s claim of past

 7   persecution, and is “substantial” when measured against the

 8   record as a whole, the agency did not err in relying upon it

 9   to find him not credible.     See Secaida-Rosales v. INS, 331

10   F.3d 297, 308-09 (2d Cir. 2003).1

11       The agency also reasonably relied on Ba’s lack of

12   evidence to corroborate his claim that he had been arrested

13   twice in Mauritania.   See Biao Yang v. Gonzales, 496 F.3d

14   268, 273 (2d Cir. 2007) (“the absence of corroboration in

            1
            The other discrepancy relied upon by the agency,
       regarding when Ba decided to leave Mauritania, is not
       substantial when weighed against the record as a whole.
       See Secaida-Rosales, 331 F.3d at 307. The IJ concluded
       that because Ba began making arrangements to leave
       Mauritania prior to his friend’s arrest, his statement
       that he knew he would have to leave after his friend was
       arrested was “a serious inconsistency.” CAR at 172.
       However, Ba consistently testified that he began making
       arrangements to leave Mauritania at the beginning of
       2001, and then decided with certainty that he had to
       leave after his friend was arrested. See Ramsameachire
       v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004)(“[W]e will
       reverse where the adverse credibility determination is
       based upon . . . an incorrect analysis of the testimony.”
       (internal quotation marks omitted)).
                                     4
 1   general makes an applicant unable to rehabilitate testimony

 2   that has already been called into question”).     The IJ

 3   sufficiently inquired as to the availability of the evidence

 4   as she asked Ba whether there was any evidence available to

 5   support his claim, specifically, letters from his family

 6   members allegedly present when he was arrested in 1992, and

 7   when he was released from detention in 2000 and who saw the

 8   injuries he had sustained.     Ba stated that he had not asked

 9   his family members to write letters for him, but that if he

10   did ask them, they would not “have any problem” doing so.

11   CAR at 385-87.   See Li Zu Guan v. INS, 453 F.3d 129, 141 (2d

12   Cir. 2006) (holding that agency’s standard for written

13   corroboration “must be calibrated to the norms and practices

14   of the aliens’ home countries”).     Ba did not however

15   subsequently submit any corroborating evidence to the IJ or

16   on appeal to the BIA.

17       The inconsistency identified by the IJ as to where and

18   when Ba was arrested in 1992 is supported by substantial

19   evidence and goes to the heart of his claim.     See Secaida-

20   Rosales, 331 F.3d at 308-09.     Ultimately, given the

21   discrepancy regarding Ba’s arrest, as well as the lack of

22   corroborating evidence to support his claim, the agency’s

23   adverse credibility determination is supported by
                                     5
 1   substantial evidence.   See Shu Wen Sun, 510 F.3d at 380.

 2   Furthermore, because the only evidence of a threat to Ba’s

 3   life or freedom, or that he is likely to be tortured,

 4   depends upon his credibility, the adverse credibility

 5   determination in this case necessarily precludes success on

 6   the claims for asylum, withholding of removal, and CAT

 7   relief.   See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

 8   2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,

 9   523 (2d Cir. 2005).

10       For the foregoing reasons, the petition for review is

11   DENIED.   As we have completed our review, any stay of

12   removal that the Court previously granted in this petition

13   is VACATED, and any pending motion for a stay of removal in

14   this petition is DENIED as moot.   The pending motion to hold

15   the petition for review in abeyance is DENIED as moot.   Any

16   pending request for oral argument in this petition is DENIED

17   in accordance with Federal Rule of Appellate Procedure

18   34(a)(2), and Second Circuit Local Rule 34.1(b).

19
20                               FOR THE COURT:
21                               Catherine O’Hagan Wolfe, Clerk
22
23




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