Diallo v. Gonzales

Decision Date26 April 2006
Docket NumberDocket No. 04-4018-AG.
Citation445 F.3d 624
PartiesMaladho Djehe DIALLO, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent.
CourtU.S. Court of Appeals — Second Circuit

Thomas V. Massucci, New York, NY, for Petitioner.

Tanya Davis Wilson, Assistant United States Attorney, Middle District of Florida (Paul I. Perez, United States Attorney, Karin B. Hoppmann, Assistant United States Attorney, of counsel), Orlando, FL, for Respondent.

Before: KEARSE and SACK, Circuit

Judges, and STANCEU, Judge.*

SACK, Circuit Judge.*

Maladho Djehe Diallo, a native and citizen of the Republic of Guinea, petitions for review of a decision of the Board of Immigration Appeals ("BIA") affirming the denial by an immigration judge ("IJ") of Diallo's application for asylum, withholding of removal, and relief under the Convention Against Torture1 ("CAT"). Diallo contends that the IJ erred in failing to consider adequately her explanations for apparent inconsistencies among her written asylum application, her interview by an asylum officer, and her testimony before the IJ. She also contends that the asylum officer's summary of her asylum interview was unreliable, and that the IJ erred by not explicitly analyzing its reliability and by improperly faulting her for failure to produce corroborative evidence.

We disagree, and therefore deny the petition.

BACKGROUND
Diallo's Statements

Diallo entered the United States from Guinea as a nonimmigrant visitor on August 25, 2001. Some five months later, on January 23, 2002, she submitted a written application for political asylum and withholding of removal (the "original application"). In connection with that submission, on March 22, 2002, Diallo was interviewed by an asylum officer (the "asylum interview"). See 8 C.F.R. § 208.9 (providing for interview by an asylum officer as the first step in the adjudication of an asylum claim). The officer's written summary of that interview appears in the record. On May 16, 2002, Diallo supplemented her original application with an additional written statement. Nearly a year later, on April 24, 2003, she testified at a hearing before an IJ.

In each of the written and oral statements that she made during the course of the asylum process, Diallo alleged that she was persecuted by the Guinean government on account of her participation in the Union for a New Republic Party, an opposition political group. Diallo said that she joined the party, to which both her father and husband also belonged, in 1996, and that she remained an active party participant when the party joined the Union for Progress and Renewal ("UPR"), an opposition political coalition. Diallo said that in September 1997 she was suspended from school for wearing a T-shirt with the UPR insignia. During the Guinean presidential election of December 1998, she said, she was arrested at a demonstration against the regime and detained for two days, during which time she was beaten and interrogated. Diallo also testified that after her arrest, she was permanently expelled from public schools. In late 2000, Diallo said, she was again arrested and detained by the military. This time, her husband was arrested too.

Diallo appears to have given inconsistent accounts of what happened next. In her asylum interview of March 22, 2002, her supplemental application of May 16, 2002, and her testimony to the IJ on April 24, 2003, Diallo said that she was arrested in November 2000 and subsequently detained for five months, during which time she was subjected to unsanitary conditions and given inadequate food. In her original application of January 23, 2002, however, Diallo did not mention the detention. Instead, she wrote that "after rebels attacked Guinea, in September 2000, ... I was interrogated and released because I was sick, but my husband was detained for 8 months." The January 23 application does not describe any further detention.

Diallo also made apparently inconsistent statements regarding whether she was raped. The summary of her asylum interview reports that she said that she had been raped sometime between August 1996 and December 1998. But in neither of her asylum applications, one of which she submitted before the asylum interview and the other afterwards, did she say that she had been. And in her April 24, 2003, testimony before the IJ, Diallo explicitly denied having been raped.

Diallo's Explanations for Her Inconsistent Statements

At both her asylum interview and the hearing before the IJ, Diallo was questioned regarding the apparent inconsistencies in her asylum applications. According to the summary of the asylum interview, the asylum officer asked Diallo why she did not mention in her original application that she had been raped. Diallo reportedly answered that "she realized the information was missing after the application had been mailed to [the Immigration and Naturalization Service]." Assessment to Refer, Immigration and Naturalization Service, New York Asylum Office, dated March 22, 2002 (Gov.Ex. 11), at 2 (emphasis in original).

When Diallo did not mention her rape in her testimony, the IJ asked her to reconcile the omission with her reported statements at the asylum interview.

Q: ... [W]hy did you tell the asylum officer that you were raped?

A: That I was raped?

Q: Yes.

A: I, I did tell him that women there, the woman that I was with were raped.

Q: According to this, you said that you were raped.

A: To tell you the truth, I was not, I was not raped, and also I was in pain because I had just, I gave birth, it was not that long ago and I gave birth and I left my child with somebody else.

Q: Why would you tell someone you were raped if you weren't?

A: I did not know, I did not know where I was at that time, and I left my child with somebody else and I was worried about my child.

Tr. of Asylum Hearing, Apr. 24, 2003, at 45-46. The IJ also asked Diallo to explain why she did not indicate in her original asylum application that she had been detained for five months following her arrest by Guinean authorities in 2000. She responded: "I did tell the preparer. Maybe that preparer made a mistake and never mentioned." Id. at 42.

The IJ's Decision

Following a hearing, the IJ issued an oral decision finding that "there are far too many inconsistencies and contradictions in the evidence offered[] to consider the respondent a credible or reliable witness." Oral Decision of the IJ, dated Apr. 24, 2003, at 8-9. The IJ highlighted two primary inconsistencies: (1) Diallo's initial application for asylum did not mention the five-month detention she later described; and (2) the asylum officer reported that Diallo told him during her asylum interview that she had been raped but she later indicated that she had never been raped. The IJ commented that Diallo had offered "little explanation" for the first discrepancy, and that her explanation for the second, in the course of the colloquy set forth above, was "evasive and hesitant," "bordering on incoherent." Id. at 9.

The IJ also noted that Diallo "was unable to give much detail" regarding the platform of her political party and that "the only corroborating evidence the respondent has offered [regarding her political participation] is a card indicating that she was a member of the UPR and a letter." Id. at 9-10. From this, the IJ concluded that "[p]erhaps the respondent is a member of this party, but clearly, she does not have much knowledge of the party, or is not very active in the party." Id. at 10. Thus, the IJ concluded that "based on the respondent's lack of credibility and her failure to corroborate her claim, the Court finds that she has failed to meet her burden." Id.

The BIA's Decision

Diallo appealed the IJ's decision to the BIA. In a one-paragraph per curiam opinion, the BIA concluded that "the inconsistencies upon which the Immigration Judge based her decision are actually present in the record; the inconsistencies pertain to the salient points of the respondent's claims; and the inconsistencies provide a cogent basis for the adverse credibility determination." In re Diallo, A95 375 142, slip op. at 1 (BIA June 29, 2004). The BIA further stated that "the respondent failed to provide convincing explanations for the discrepant record either during the removal hearings or on appeal."2 Id. The BIA therefore adopted and affirmed the decision of the IJ.

Diallo then brought this petition for review. She argues that the IJ erred in: (1) ignoring her explanations for the apparent inconsistencies in her story, (2) relying on the written summary of the asylum interview, and (3) requiring corroborative evidence without identifying specific pieces of evidence or showing that they were reasonably available to Diallo.

DISCUSSION
I. Standard of Review

When the BIA issues a brief opinion adopting an IJ's decision, we review the two decisions together — including "the portions [of the IJ's decision] not explicitly discussed by the BIA." Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394-95 (2d Cir. 2005) (per curiam); see also Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir. 2003). We review the IJ's factual findings, including credibility determinations, for substantial evidence. See id. at 306-07. Under this standard, the IJ's factual determinations may be overturned only if "any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).

We have frequently considered how substantial the evidence must be in order for it to support an adverse credibility determination. In general, we "afford particular deference in applying the substantial evidence standard" to credibility findings, Zhou Yun Zhang v. INS, 386 F.3d 66, 73-74 (2d Cir.2004) (internal quotation marks omitted), because "the IJ's ability to observe the witness's demeanor places her in the best position to evaluate whether apparent problems in the witness's testimony...

To continue reading

Request your trial
56 cases
  • Brundle v. Wilmington Trust, N.A.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • 21 Marzo 2019
  • Lin v. Holder
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • 22 Noviembre 2013
    ...immediately upon entering the United States and indicates an intention to apply for asylum or a fear of persecution.” Diallo v. Gonzales, 445 F.3d 624, 631 (2d Cir.2006). As my colleagues recognize, the circuit courts of appeals have uniformly held that these particular interviews should be......
  • Hugler v. First Bankers Trust Servs., Inc., 12 CV 8649 (VB)
    • United States
    • U.S. District Court — Southern District of New York
    • 29 Marzo 2017
  • Gao v. Sessions
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 25 Mayo 2018
    ...IJ must also " ‘engage or evaluate’ an asylum applicant's explanations for apparent inconsistencies in the record." Diallo v. Gonzales , 445 F.3d 624, 629 (2d Cir. 2006) (quoting Latifi , 430 F.3d at 105 ); see also Cao He Lin v. U.S. Dep't of Justice , 428 F.3d 391, 403 (2d Cir. 2005) ("Ab......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT