Bakari DIAKITE, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE, Board of Immigration Appeals, Respondents, 476 F. App'x 478

SUMMARY ORDER Bakari Diakite, a native and citizen of the Democratic Republic of the Congo (“DRC”), seeks review of a November 8, 2009, order of the BIA affirming the March 18, 2008, decision of Immigration Judge (“IJ”) Helen J. Sichel, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Diakite, No. [ AXXX XXX XXX ] (B.I.A. Nov. 3, 2009), aff'g No. [ AXXX XXX XXX ] (Immig. Ct. N.Y. City Mar. 18, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

Under the circumstances of this case, we have reviewed the IJ’s decision as modified by the BIA decision, and address only the adverse credibility determination. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). The applicable standards of review are well-established. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008); Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d Cir.2007). To form the basis of an adverse credibility determination, a discrepancy must be “substantial” when measured against the record as a whole. See Latifi v. Gonzales, 430 F.3d 103, 105 (2d Cir.2005).

At the same time, however, “even where an IJ relies on discrepancies or lacunae that, if taken separately, concern matters collateral or ancillary to the claim, ... the cumulative effect may nevertheless be deemed consequential by the fact-finder.” Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir. 2006) (internal citations omitted).

The agency’s adverse credibility finding in this case was based on an accumulation of factors, including the inconsistency in Diak-ite’s testimony as to when his family store was robbed and destroyed, inconsistencies among his testimony, asylum application and corroborating evidence as to when he entered the United States, and a discrepancy between his testimony and his corroborating evidence as to the date of, and events during, the incident which precipitated Diakite’s departure from the DRC.

These inconsistencies were substantial when measured against the record as a whole, and IJ provided specific and cogent reasons for relying upon them in finding Diakite not credible. The agency therefore did not err in concluding that Diakite was not credible. See Majidi v. Gonzales, 430 F.3d 77, 79-80 (2d Cir.2005); Secaida-Rosales v. INS, 331 F.3d 297, 308-09 (2d Cir.2003).

The adverse credibility determination precludes success on the claims for asylum, withholding of removal, and CAT relief, because the only evidence of a threat to Diakite’s life or freedom, or that he was likely to be tortured, depended upon his credibility. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005). For the foregoing reasons, the petition for review is DENIED.

As we have completed our review, any stay of removal that this 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). Because Diakite applied for asylum prior to the enactment of the Real ID Act, Secaida-Rosales is applicable. See Dong Zhong Zheng v. Mukasey, 552 F.3d 277, 287 n. 6 (2d Cir.2009).