Djigo v. Holder

SUMMARY ORDER Petitioner Abdoul Aziz Djigo, a native and citizen of Mauritania, seeks review of a November 29, 2007 order of the BIA affirming the October 24, 2005 decision of Immigration Judge (“IJ”) Robert Weisel, denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Abdoul Aziz Djigo, No. A73 677 556 (B.I.A. Nov. 29, 2007), ajfg No. A7B 677 556 (Immig. Ct. N.Y. City Oct. 24, 2005). We assume the parties’ familiarity with the underlying facts and procedural history of the case. When the BIA summarily affirms the decision of the IJ without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), we review the IJ’s decision as the final agency determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir.2008). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). An IJ’s adverse credibility determination must be “based on specific, cogent reasons bearing a legitimate nexus to the determination.” Belortaja v. Gonzales, 484 F.3d 619, 626 (2d Cir.2007). The agency may properly base an adverse credibility determination on inconsistencies that “to the heart” of the applicant’s claim for relief. See Xu Duan Dong v. Ashcroft, 406 F.3d 110, 112 (2d Cir.2005) (quoting Ramsameachire v. Ashcroft, 357 F.3d 169, 182 (2d Cir.2008)). Here, the IJ primarily based the adverse credibility finding on two inconsistencies: (1) the inconsistency between Djigo’s testimony that he was beaten and detained in 1991 and his concession to testifying at an earlier hearing that the incident occurred in 1989, as was also alleged in his asylum application; and (2) the inconsistency between Djigo’s claim that he was beaten and detained for his membership in the African Liberation Forces of Mauritania (FLAM), and his admission before the IJ that he was not a member of FLAM. 2 The IJ’s findings had a “legitimate nexus” to Djigo’s claim for relief. Belortaja, 484 F.3d at 626. The IJ did not err in finding that discrepancies in the record regarding Djigo’s membership in FLAM and the dates of the sole alleged incident of persecution were central to his claim. See Xu Duan Dong, 406 F.3d at 112. Although Djigo explained that the 1989 date was a mistake for which the preparer of the asylum application was responsible, the IJ- acted reasonably in rejecting Djigo’s explanations. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.2005). Because the only evidence of a threat to Djigo’s life or freedom depended upon his *302 credibility, his failure to exhaust precludes success on his claims for asylum, withholding of removal, and CAT relief where all three claims were based on the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006). For the foregoing reasons, the petition for review is DENIED. Footnotes [2] Djigo challenges the IJ's adverse credibility finding in his brief to this Court, but did not do so before the BIA. We nonetheless address the adverse credibility determination because the government does not argue that the issue is unexhausted. See Lin Zhong v. U.S. Dep’t of Justice, 461 F.3d 101, 119-20 (2d Cir.2006) (holding that exhaustion of issues is waived if not raised by the government).