Boda v. Garland ( 2022 )

20-4258
Boda v. Garland
BIA
Schoppert, IJ
A206 562 606
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED
AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS
COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A
PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY
NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 3rd day of March, two thousand twenty-two.
5
6 PRESENT:
7 GERARD E. LYNCH,
8 RAYMOND J LOHIER, JR.,
9 WILLIAM J. NARDINI,
10 Circuit Judges.
11 _____________________________________
12
13 FRANCOIS BODA,
14 Petitioner,
15
16 v. 20-4258
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gary J. Yerman, Esq., New York,
24 NY.
25
26 FOR RESPONDENT: Brian M. Boynton, Acting Assistant
27 Attorney General; Shelley R. Goad,
28 Assistant Director; Monica G.
1 Antoun, Trial Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, DC.
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DISMISSED IN PART and DENIED IN PART.
9 Petitioner Francois Boda, a native and citizen of the
10 Central African Republic, seeks review of a December 9, 2020,
11 decision of the BIA affirming a November 1, 2018, decision of
12 an Immigration Judge (“IJ”) denying asylum, withholding of
13 removal, and relief under the Convention Against Torture
14 (“CAT”). In re Francois Boda, No. A206 562 606 (B.I.A. Dec.
15 9, 2020), aff’g No. A206 562 606 (Immig. Ct. N.Y. City Nov.
16 1, 2018). We assume the parties’ familiarity with the
17 underlying facts and procedural history.
18 We have reviewed the IJ’s decision as modified by the
19 BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
20 520, 522 (2d Cir. 2005). For the following reasons, we
21 dismiss the petition as to asylum and deny it as to
22 withholding of removal and CAT protection.
2
1 Our jurisdiction to review the agency’s findings
2 regarding the timeliness of an asylum application and the
3 circumstances excusing the untimeliness is limited to
4 constitutional claims or questions of law. See 8 U.S.C.
5 §§ 1158(a)(3), 1252(a)(2)(D). In the present case, we lack
6 jurisdiction to review the denial of asylum because Boda
7 challenges the agency’s factual determination that his 11-
8 month delay in filing after the overthrow of the government
9 in his home country that prompted his fear of return was
10 unreasonable. See Xiao Ji Chen v. U.S. Dep't of Just., 471
11 F.3d 315, 329 (2d Cir. 2006) (“[W]e remain deprived of
12 jurisdiction . . . when the petition for review essentially
13 disputes the correctness of an IJ's fact-finding or the wisdom
14 of his exercise of discretion.”); see also 8 U.S.C.
15 §§ 1158(a)(2)(B), (D), (3); 8 C.F.R. §§ 1208.4(a)(4)(ii),
16 (a)(5). Although Boda asserts the agency overlooked country
17 conditions evidence, he does not identify evidence the agency
18 failed to consider. See Xiao Ji Chen, 471 F.3d at 336 n.17
19 (“[W]e presume that an IJ has taken into account all of the
20 evidence before him, unless the record compellingly suggests
21 otherwise.”).
3
1 We deny the petition as to withholding of removal and
2 CAT protection. An applicant bears the burden of proving his
3 eligibility for relief with credible testimony and reasonably
4 available corroboration. 8 U.S.C. §§ 1158(b)(1)(B)(i),
5 (ii), 1231(b)(3)(C); 8 C.F.R. § 1208.16(c)(2). We find no
6 error in the agency’s conclusion that Boda failed to meet his
7 burden of proof.
8 “Considering the totality of the circumstances, and all
9 relevant factors, a trier of fact may base a credibility
10 determination on the demeanor, candor, or responsiveness of
11 the applicant . . . , the consistency between the
12 applicant’s . . . written and oral statements . . . , the
13 internal consistency of each such statement, [and] the
14 consistency of such statements with other evidence of record
15 . . . without regard to whether an inconsistency, inaccuracy,
16 or falsehood goes to the heart of the applicant’s claim, or
17 any other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii).
18 “We defer . . . to an IJ’s credibility determination
19 unless . . . it is plain that no reasonable fact-finder could
20 make such an adverse credibility ruling.” Xiu Xia Lin v.
4
1 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei
2 Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018).
3 We defer to the IJ’s conclusion that Boda’s demeanor
4 undermined his credibility given his vague testimony about
5 his work for the New York embassy of the Central African
6 Republic and his knowledge of the current government. See
7 Karaj v. Gonzales, 462 F.3d 113, 116 (2d Cir. 2006) (giving
8 “particular deference” to demeanor findings (internal
9 quotation marks omitted)). That finding, and the adverse
10 credibility determination as a whole, were bolstered by
11 inconsistencies regarding whether Boda lived at the embassy,
12 how he was paid, and whether he had siblings. See 8 U.S.C.
13 § 1158(b)(1)(B)(iii); Li Hua Lin v. U.S. Dep’t of Justice,
14 453 F.3d 99, 109 (2d Cir. 2006) (“We can be . . . more
15 confident in our review of observations about an applicant’s
16 demeanor where . . . they are supported by specific examples
17 of inconsistent testimony.”). Those findings provide
18 substantial evidence for the adverse credibility
19 determination. See Likai Gao v. Barr, 968 F.3d 137, 145 n.8
20 (2d Cir. 2020) (“[E]ven a single inconsistency might preclude
21 an alien from showing that an IJ was compelled to find him
5
1 credible. Multiple inconsistencies would so preclude even
2 more forcefully.”).
3 Moreover, Boda did not rehabilitate his credibility with
4 reliable corroboration. See Biao Yang v. Gonzales, 496 F.3d
5 268, 273 (2d Cir. 2007) (“An applicant’s failure to
6 corroborate his . . . testimony may bear on credibility,
7 because the absence of corroboration in general makes an
8 applicant unable to rehabilitate testimony that has already
9 been called into question.”). The agency reasonably afforded
10 minimal weight to the family letters, particularly given
11 Boda’s inconsistent statements about whether he had siblings.
12 See Y.C. v. Holder, 741 F.3d 324, 332, 334 (2d Cir. 2013)
13 (holding that “[w]e generally defer to the agency’s
14 evaluation of the weight to be afforded an applicant’s
15 documentary evidence” and upholding BIA’s decision to afford
16 little weight to letter from applicant’s spouse); Matter of
17 H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010)
18 (finding letters from relatives and friends did not provide
19 substantial support for claim where authors were “interested
20 witnesses . . . not subject to cross-examination”),
21 overruled on other grounds by Hui Lin Huang v. Holder, 677
6
1 F.3d 130 (2d Cir. 2012). And the pay stub Boda submitted did
2 not confirm his employment with the embassy in the United
3 States.
4 Accordingly, absent credible testimony or reliable
5 corroboration, the agency did not err in concluding that Boda
6 could not meet his burden of proof. See 8 U.S.C.
7 §§ 1158(b)(1)(B)(ii), 1231(b)(3)(C); 8 C.F.R.
8 § 1208.16(c)(2). That determination is dispositive of
9 withholding of removal and CAT relief because both forms of
10 relief were based on the same discredited factual predicate.
11 See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).
12 For the foregoing reasons, the petition for review is
13 DISMISSED IN PART and DENIED IN PART. All pending motions
14 and applications are DENIED and stays VACATED.
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe,
17 Clerk of Court
7