Bonilla-Inga v. Barr ( 2019 )

17-1984
Bonilla-Inga v. Barr
BIA
Loprest, IJ
A206 685 668
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 11th day of March, two thousand nineteen.
PRESENT:
JON O. NEWMAN,
JOSÉ A. CABRANES,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
RICHARD FERNANDO BONILLA-INGA,
Petitioner,
v. 17-1984
NAC
WILLIAM P. BARR,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Michael Borja, Borja Law Firm,
P.C., Jackson Heights, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Terri J.
Scadron, Assistant Director; Corey
L. Farrell, Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Richard Fernando Bonilla-Inga, a native and
citizen of Ecuador, seeks review of a May 25, 2017, decision
of the BIA affirming an October 11, 2016, decision of an
Immigration Judge (“IJ”) denying Bonilla-Inga’s application
for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Richard Fernando
Bonilla-Inga, No. A 206 685 668 (B.I.A. May 25, 2017), aff’g
No. A 206 685 668 (Immig. Ct. N.Y. City Oct. 11, 2016). We
assume the parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, our review is
limited to the IJ’s and BIA’s decision to the extent they
deny relief on credibility grounds. Jin Yu Lin v. U.S. Dep't
of Justice, 413 F.3d 188, 191 n.4 (2d Cir. 2005). We review
the adverse credibility determination under a substantial
evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin
v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). The
governing REAL ID Act credibility standard provides as
2
follows:
Considering the totality of the circumstances, and
all relevant factors, a trier of fact may base a
credibility determination on the demeanor, candor,
or responsiveness of the applicant or witness, . .
. the consistency between the applicant’s or
witness’s written and oral statements . . . , the
internal consistency of each such statement, the
consistency of such statements with other evidence
of record . . . , and any inaccuracies or falsehoods
in such statements, . . . or any other relevant
factor.
8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
credibility determination unless . . . it is plain that no
reasonable fact-finder could make such an adverse credibility
ruling.” Xiu Xia Lin, 534 F.3d at 167. The agency
reasonably relied on inconsistencies between Bonilla-Inga’s
written statement, border interview, and testimony, as well
as his demeanor and lack of reliable corroborating evidence,
which, considered together, provide substantial evidence for
the adverse credibility determination.
First, the IJ reasonably relied on Bonilla-Inga’s written
statement and testimony, which provided “dramatically
different” accounts of his alleged persecution. Majidi v.
Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (concluding that
“dramatically different” accounts of alleged persecution was
substantial evidence for adverse credibility determination).
3
Bonilla-Inga’s written statement described a December 2013
threat and a January 2014 beating that he reported to the
police. In contrast, he testified that he was beaten during
both incidents and that he reported the first, not the second
beating to the police. The IJ was not required to credit
Bonilla-Inga’s explanation that he omitted information
because he was detained and nervous, as he was not detained
when he prepared the written statement with the assistance of
counsel. Id. (“A petitioner must do more than offer a
plausible explanation for his inconsistent statements to
secure relief; he must demonstrate that a reasonable fact-
finder would be compelled to credit his testimony.” (internal
quotation marks and citations omitted)).
Second, the record of Bonilla-Inga’s interview with a
Border Patrol Agent was inconsistent with his testimony and
asylum application. Bonilla-Inga stated during his border
interview that he came to the United States to work and did
not fear harm in Ecuador. Although “[w]e exercise caution”
in relying on such interviews, Yun-Zui Guan v. Gonzales, 432
F.3d 391, 396 (2d Cir. 2005), the agency did not err because
there are sufficient indicia of reliability, Ming Zhang v.
Holder, 585 F.3d 715, 721 (2d Cir. 2009). The record was a
4
typed, verbatim list of the questions and responses, which
included a question as to whether Bonilla-Inga feared harm or
persecution. See Yun-Zui Guan, 432 F.3d at 396. Moreover,
Bonilla-Inga’s responses reflect that he understood the
questions. And his current allegation that he did not sign
the interview record because of his concerns for its accuracy
is belied by his testimony that he refused to sign because he
feared that he would be deported immediately if he did.
Third, the adverse credibility determination is further
bolstered by the IJ’s demeanor finding, to which we defer.
Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d Cir.
2005). The record supports the IJ’s finding that Bonilla-
Inga’s voice dropped considerably in volume at several points
during his testimony. Finally, Bonilla-Inga’s corroborating
evidence was insufficient to rehabilitate his credibility.
See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)
(“An applicant’s failure to corroborate his . . . testimony
may bear on credibility, because the absence of corroboration
in general makes an applicant unable to rehabilitate
testimony that has already been called into question”). The
only country conditions evidence described his alleged
persecutor as a group of relatives of inmates who had reported
5
abuses by prison guards. And the agency was not required to
credit affidavits from Bonilla-Inga’s friends and family
members as the affidavits lacked detail and the authors were
not subject to cross-examination. See Y.C. v. Holder, 741
F.3d 324, 332, 334 (2d Cir. 2013) (holding that the weight of
evidence is generally in agency’s discretion and deferring to
agency’s decision to give limited weight to letter from
applicant’s spouse in China).
Given the inconsistencies between Bonilla-Inga’s written
statement, border interview, and testimony, as well as the
demeanor finding, and the lack of any reliable corroboration,
the totality of the circumstances supports the agency’s
adverse credibility determination. See Xiu Xia Lin, 534 F.3d
at 167. Because Bonilla-Inga’s claims were all based on the
same factual predicate, the adverse credibility determination
is dispositive of asylum, withholding of removal, and CAT
relief. Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.
2006).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
6