Jara-Llivichuzca v. Sessions ( 2018 )

17-870
Jara-Llivichuzca v. Sessions
BIA
Straus, IJ
A206 689 908
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 20th day of August, two thousand eighteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 GERARD E. LYNCH,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 OFELIA MARGARITA JARA-
14 LLIVICHUZCA,
15 Petitioner,
16
17 v. 17-870
18 NAC
19 JEFFERSON B. SESSIONS III,
20 UNITED STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Gregory Osakwe, Hartford, CT.
25
26 FOR RESPONDENT: Chad A. Readler, Acting
27 Assistant Attorney General;
28 Claire L. Workman, Senior
29 Litigation Counsel; Juria L.
30 Jones, Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, DC.
4
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 DENIED.
9 Petitioner Ofelia Margarita Jara-Llivichuzca, a native
10 and citizen of Ecuador, seeks review of a March 2, 2017,
11 decision of the BIA affirming a June 13, 2016, decision of
12 an Immigration Judge (“IJ”) denying Jara-Llivichuzca’s
13 application for asylum, withholding of removal, and relief
14 under the Convention Against Torture (“CAT”). In re Ofelia
15 Margarita Jara-Llivichuzca, No. A206 689 908 (B.I.A. Mar.
16 2, 2017), aff’g No. A206 689 908 (Immig. Ct. Hartford June
17 13, 2016). We assume the parties’ familiarity with the
18 underlying facts and procedural history in this case.
19 Under the circumstances of this case, we review the IJ’s
20 decision as modified by the BIA. See Xue Hong Yang v. U.S.
21 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The
22 applicable standards of review are well established. See
23 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d
24 162, 165-66 (2d Cir. 2008).
2
1 The governing REAL ID Act credibility standard provides
2 that the agency must “[c]onsider[] the totality of the
3 circumstances,” and may base a credibility finding on the
4 plausibility of an applicant’s account and inconsistencies
5 in her or her statements. 8 U.S.C. § 1158(b)(1)(B)(iii);
6 Xiu Xia Lin, 534 F.3d at 163-64, 166-67. “We defer . . . to
7 an IJ’s credibility determination unless . . . it is plain
8 that no reasonable fact-finder could make such an adverse
9 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. For the
10 reasons that follow, we conclude that substantial evidence
11 supports the agency’s adverse credibility determination.
12 As the Government observes, Jara-Llivichuzca does not
13 specifically challenge the inconsistency, omission, and
14 implausibility findings underlying the adverse credibility
15 determination. See Norton v. Sam’s Club, 145 F.3d 114, 117
16 (2d Cir. 1998) (“Issues not sufficiently argued in the briefs
17 are considered waived and normally will not be addressed on
18 appeal.”); see also Shunfu Li v. Mukasey, 529 F.3d 141, 146-
19 47 (2d Cir. 2008) (applying waiver doctrine to specific
20 findings underlying credibility determination). Moreover,
21 our review of the record and the agency’s decisions reveals
22 that the findings are supported by the record and provide
3
1 substantial evidence for the adverse credibility
2 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii).
3 Jara-Llivichuzca’s testimony and application were
4 inconsistent concerning how long she lived with her
5 domestic partner, who or what motivated his decision to
6 start a relationship with their child, how soon he became
7 abusive after moving in, and how many times she left him
8 after he resumed contact with their son. Moreover, Jara-
9 Llivichuzca’s application was facially implausible because
10 it alleged that the abuse started on a date after she
11 arrived in the United States. And she submitted a letter
12 from a relative that both omitted the only incident of
13 which the author had firsthand knowledge—a threatening
14 visit from Jara-Llivichuzca’s partner—and was inconsistent
15 about when the abuse started, when she decided to flee
16 Ecuador, and whether she ever spoke to the relative about
17 the abuse. Contrary to Jara-Llivichuzca’s position, these
18 discrepancies are extensive and called into question the
19 circumstances of her relationship with her partner, when
20 and how the abuse commenced, the duration of the abuse and
21 her responses to it, and her family’s knowledge of the
22 abuse. Because these discrepancies relate to the very harm
4
1 on which her claim is based, the “totality of the
2 circumstances” supports the adverse credibility
3 determination. Xiu Xia Lin, 534 F.3d at 166 (“Where the
4 IJ’s adverse credibility finding is based on specific
5 examples . . . of inconsistent statements or contradictory
6 evidence, a reviewing court will generally not be able to
7 conclude that a reasonable adjudicator was compelled to
8 find otherwise.” (quotation marks omitted)); see Xian Tuan
9 Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir.
10 2006) (holding that material inconsistency regarding basis
11 of applicant’s asylum claim is substantial evidence for
12 adverse credibility determination).
13 The credibility determination is dispositive of the
14 asylum, withholding of removal, and CAT relief claims because
15 all three claims are based on the same factual predicate.
16 See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
17 We therefore decline to consider the agency’s alternative
18 determination that Jara-Llivichuzca failed to provide or
19 explain the absence of corroborating evidence. See INS v.
20 Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts
21 and agencies are not required to make findings on issues the
22 decision of which is unnecessary to the results they reach.”).
5
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, the pending motion
3 for a stay of removal in this petition is DISMISSED as moot.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe,Clerk
6