Opinion
No. 08-5417-ag.
December 18, 2009.
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.
Ronald S. Salomon, New York, N.Y., for Petitioner.
Tony West, Assistant Attorney General, Civil Division; Thomas B. Fatouros, Senior Litigation Counsel; Anh-Thu P. MaiWindle, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.
PRESENT: JON O. NEWMAN, RALPH K. WINTER and REENA RAGGI, Circuit Judges.
SUMMARY ORDER
Ahmed Bechir Fall, a native and citizen of Mauritania, seeks review of an October 9, 2008 order of the BIA, affirming the June 14, 2007 decision of Immigration Judge ("IJ") Helen Sichel, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). In re Ahmed Bechir Fall, No. A098 420 409 (B.I.A. Oct. 9, 2008), aff'g No. A098 420 409 (Immig. Ct. N.Y. City June 14, 2007). We assume the parties' familiarity with the underlying facts and procedural history in this case.
I. Asylum, Withholding of Removal, and CAT Relief
When the BIA affirms the IJ's decision in some respects but not others, this Court reviews the IJ's decision as modified by the BIA decision, i.e., minus the arguments for denying relief that were rejected by the BIA. See Xue Hong Yang v. U.S. Dep't of Justice, 426 F.3d 520, 522 (2d Cir. 2005). In addition to her adverse credibility determination, the IJ pretermitted Fall's asylum application as untimely and indicated that she would deny that application as a matter of discretion based on Fall's conduct in this country. The BIA declined to reach these latter findings, affirming the IJ's decision to the extent she found Fall not credible. Accordingly, we review only Fall's challenge to that credibility determination.
We review the agency's factual findings, including adverse credibility findings, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008). We review de novo questions of law and the application of law to undisputed fact. See, e.g., Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
Substantial evidence supports the agency's adverse credibility determination. The agency properly relied on multiple inconsistencies regarding the length of time Fall claimed to have been detained in December 2000. See Diallo v. INS, 232 F.3d 279, 288 (2d Cir. 2000). In his asylum application, Fall stated that he had been detained for one week in December 2000, during which time he was beaten, fed only a small amount of food, and "mistreated with electricity." However, during his merits hearing, Fall testified several times that he had been detained for two weeks. Although "minor" and "isolated" inconsistencies regarding the amount of time an applicant spends in detention need not be fatal to his credibility, id. at 287, the IJ reasonably deemed consequential Fall's inconsistent statements about this central aspect of his claim. See Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir. 2006). Moreover, no reasonable fact-finder would have been compelled to accept Fall's explanation that this inconsistency was a simple mistake. See Majidi v. Gonzales, 430 F.3d 77, 81 (2d Cir. 2005). As the BIA noted, during his hearing, Fall doubled the length of his alleged detention.
The BIA's opinion states that Fall testified to two weeks of detention "twice." JA 3. The IJ's oral decision states that Fall testified to two weeks of detention "at least twice." JA 55. In fact, the record reveals that Fall so testified on four occasions. JA 92, 93, 94, 125.
The agency also reasonably relied on the discrepancy between Fall's claim that he was an active participant in the Action for Change political party for several years and his inability to accurately recall the names of party leaders. Such inability undermined his claim, which was based entirely on his political opinion. Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir. 2003). Moreover, no reasonable fact-finder would be compelled to credit Fall's explanation that his lack of knowledge stemmed from his "low level" involvement in the organization and his lack of education. See Majidi, 430 F.3d at 80-81.
Ultimately, substantial evidence supports the agency's adverse credibility determination. See Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d Cir. 2007). Thus, the agency's denial of Fall's application for asylum, withholding of removal, and CAT relief was proper. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006) (recognizing that withholding of removal necessarily fails if the applicant is unable to show the objective likelihood of persecution needed to make out an asylum claim); Xue Hong Yang v. U.S. Dep't of Justice, 426 F.3d at 523.
II. Motion to Remand
We review the BIA's denial of a motion to remand for abuse of discretion. Li Yong Cao v. U.S. Dep't of Justice, 421 F.3d 149, 157 (2d Cir. 2005). A motion to remand that relies on newly available evidence is held to the substantive requirements of a motion to reopen. Id. at 156. The movant's failure to submit previously unavailable material evidence or to establish a prima facie case for the underlying substantive relief sought are proper grounds on which the BIA may deny such a motion. See INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988).
In this case, the BIA reasonably found that Fall failed to demonstrate that changed country conditions in Mauritania would affect his claim for relief. Indeed, Fall offered no explanation as to how the events detailed in the material he submitted would establish his eligibility for relief, particularly given the agency's adverse credibility determination. See 8 C.F.R. § 1208.13(b)(2)(iii); see also Abudu, 485 U.S. at 104-05, 108 S.Ct. 904. Accordingly, the BIA did not abuse its discretion in denying Fall's motion to remand.
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(b).