Opinion
No. 09-5017-ag.
September 7, 2010.
UPON DUE CONSIDERATION of this petition for review of a decision of the Board of Immigration Appeals ("BIA"), it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review is DENIED.
Ronald S. Salomon, New York, NY, for Petitioner.
Tony West, Assistant Attorney General; John S. Hogan, Senior Litigation Counsel; Channah M. Farber, Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.
PRESENT: JON O. NEWMAN, JOSÉ A. CABRANES, DENNY CHIN, Circuit Judges.
SUMMARY ORDER
Petitioner Mamadou Sow, a native and citizen of Guinea, seeks review of a November 4, 2009, order of the BIA, affirming the March 10, 2008, decision of Immigration Judge ("IJ") Annette S. Elstein, pretermitting his asylum application and denying his application for withholding of removal and relief under the Convention Against Torture ("CAT"). In re Mamadou Sow, No. A098 587 051 (B.I.A. Nov. 4, 2009), aff'g No. A098 587 051 (Immig. Ct. N.Y. City Mar. 10, 2008). We assume the parties' familiarity with the underlying facts and procedural history of the case.
Under the circumstances of this case, we review both the IJ's and the BIA's decisions. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable standards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
As an initial matter, Sow concedes that this Court is without jurisdiction to consider the IJ's pretermission of his asylum application. See 8 U.S.C. § 1158(a)(3). We therefore review only his challenge to the agency's denial of his application for withholding of removal and CAT relief.
Substantial evidence supports the IJ's adverse credibility determination. The IJ found that: (1) although Sow testified that he was not injured when soldiers came to his home in 1998, he stated in his asylum application that the soldiers beat him "nearly to death"; (2) although Sow testified that, during his alleged detention, prison guards interrogated him only once and did not harm him, his wife's letter and his asylum application both stated that the guards threatened, beat, interrogated, and tortured him; and (3) although Sow testified that he was imprisoned from March 2003 to March 2004, his asylum application indicated that he was imprisoned from September 2003 to March 2004. Although minor and isolated discrepancies may be insufficient to support an adverse credibility finding, see Diallo v. INS, 232 F.3d 279, 285-86 (2d Cir. 2000), the multiple discrepancies here were not isolated, and related to events at the heart of Sow's claim — that he suffered past persecution and feared future persecution based on his membership in the Rally for the People of Guinea.
Because Sow filed his asylum application before May 11, 2005, the amendments made to the Immigration and Nationality Act by the REAL ID Act of 2005 do not apply to his asylum application. See Pub.L. No. 109-13, § 101(h)(2), 119 Stat. 231, 305 (2005).
The IJ also reasonably found Sow's testimony implausible, as he testified that, although he was not in contact with his wife while he was imprisoned from March 2003 to March 2004, his wife was pregnant for eleven months before she gave birth to his child in February 2004. Given the inherent implausibility of that testimony, the IJ reasonably relied on this finding as further support for the adverse credibility determination. See Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007) (holding that "[an IJ's speculation] is not `bald' if the inference is made available to the factfinder by record facts, or even a single fact, viewed in the light of common sense and ordinary experience").
Furthermore, contrary to Sow's position, a reasonable factfinder would not be compelled to conclude that the agency ignored any of the evidence that he submitted. Indeed, the agency is not required to "expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner" as long as it "has given reasoned consideration to the petition, and made adequate findings." See Wei Guang Wang v. BIA 437 F.3d 270, 275 (2d Cir. 2006); see also Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 337 n. 17 (2d Cir. 2006). Here, both the BIA and the IJ considered Sow's evidence in some detail and found him not credible.
Accordingly, substantial evidence supports the agency's adverse credibility determination. See Zhou Yun Zhang v. INS, 386 F.3d 66, 74 (2d Cir. 2004), overruled in part on other grounds by Shi Liang Lin v. U.S. Dept. of Justice, 494 F.3d 296, 305 (2d Cir. 2007) (en banc). Because the only evidence of a threat to Sow's life or freedom depended upon his credibility, the adverse credibility determination in this case necessarily precludes success on his claim for withholding of removal and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).