Ayala Vasquez v. Barr ( 2020 )


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  •      18-1816
    Ayala Vasquez v. Barr
    BIA
    Connelly, IJ
    A209 836 920
    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 November, two thousand twenty.
    5
    6   PRESENT:
    7            JOHN M. WALKER, JR.
    8            JOSÉ A. CABRANES,
    9            SUSAN L. CARNEY,
    10                 Circuit Judges.
    11   _____________________________________
    12
    13   NELSON ABDULIO AYALA VASQUEZ,
    14            Petitioner,
    15
    16                     v.                                        18-1816
    17                                                               NAC
    18   WILLIAM P. BARR, UNITED STATES
    19   ATTORNEY GENERAL,
    20            Respondent.
    21   _____________________________________
    22
    23   FOR PETITIONER:                    Ronald D. Richey, Esq.,
    24                                      Rockville, MD.
    25
    26   FOR RESPONDENT:                    Jeffrey Bossert Clark, Acting
    27                                      Assistant Attorney General; Daniel
    28                                      E. Goldman, Senior Litigation
    29                                      Counsel; Andrea N. Gevas, Trial
    30                                      Attorney, Office of Immigration
    31                                      Litigation, United States
    1                                 Department of Justice, Washington,
    2                                 DC.
    3
    4       UPON DUE CONSIDERATION of this petition for review of a
    5   Board of Immigration Appeals (“BIA”) decision, it is hereby
    6    ORDERED, ADJUDGED, AND DECREED that the petition for review
    7    is DENIED.
    8        Petitioner Nelson Abdulio Ayala Vasquez, a native and
    9    citizen of El Salvador, seeks review of a May 18, 2018
    10   decision of the BIA affirming a September 19, 2017 decision
    11   of an Immigration Judge (“IJ”) denying his application for
    12   asylum,   withholding    of   removal,   and   relief   under   the
    13   Convention Against Torture (“CAT”).      See In re Nelson Abdulio
    14   Ayala Vasquez, No. A209 836 920 (B.I.A. May 18, 2018), aff’g
    15   No. A209 836 920 (Immig. Ct. Batavia Sept. 19, 2017).           We
    16   assume the parties’ familiarity with the underlying facts and
    17   procedural history.
    18       We have considered the opinions of both the IJ and the
    19   BIA “for the sake of completeness.”       Wangchuck v. Dep’t of
    20   Homeland Security, 
    448 F.3d 524
    , 528 (2d Cir. 2006).            The
    21   applicable standards of review are well established.            See
    22   8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 
    891 F.3d 23
      67, 76 (2d Cir. 2018).
    24       An applicant for asylum or for withholding of removal
    2
    1   may sustain his burden of proof on the basis of his testimony
    2   alone “only if the applicant’s testimony is credible, is
    3   persuasive,      and   refers    to     specific    facts    sufficient     to
    4   demonstrate that the applicant is a refugee.”                        8 U.S.C.
    5   § 1158(b)(1)(B)(ii).            “Considering       the    totality    of    the
    6   circumstances, and all relevant factors, a trier of fact may
    7   base a credibility determination on . . . the consistency
    8   between    the    applicant’s      or       witness’s    written   and     oral
    9   statements . . . , the internal consistency of each such
    10   statement, [and] the consistency of such statements with
    11   other evidence of record . . . without regard to whether an
    12   inconsistency, inaccuracy, or falsehood goes to the heart of
    13   the   applicant’s      claim.”
    Id. § 1158(b)(1)(B)(iii). “We
    14   defer . . . to an IJ’s credibility determination unless, from
    15   the totality of the circumstances, it is plain that no
    16   reasonable fact-finder could make such an adverse credibility
    17   ruling.”   Xiu Xia Lin v. Mukasey, 
    534 F.3d 162
    , 167 (2d Cir.
    18   2008); accord Hong Fei 
    Gao, 891 F.3d at 76
    .
    19         The IJ denied relief on the ground that Ayala Vasquez
    20   failed to testify credibly concerning his claim that gang
    21   members threatened him after he witnessed them murder his
    22   uncle in El Salvador.            Substantial evidence supports this
    3
    1   determination.
    2       The IJ reasonably found that Ayala Vasquez, his common-
    3   law wife, and a police report provided different information
    4   regarding     who    murdered   Ayala       Vasquez’s      uncle,    how    many
    5   attackers were present at the scene, and when Ayala Vasquez
    6   reported gang threats to the police.               The IJ also reasonably
    7   relied   on   inconsistencies     between         Ayala    Vasquez    and    his
    8   wife’s accounts of the events that transpired immediately
    9   after gang members murdered his uncle.                  For example, the two
    10   witnesses’ testimony differed as to whether Ayala Vasquez
    11   fled to the church where he worked alone (or with his wife
    12   and children), whether Ayala Vasquez and his family took
    13   refuge at a house owned by his wife’s uncle (or her mother),
    14   and how long they remained in hiding.
    15       In addition, the IJ reasonably relied on omissions in a
    16   corroborating       letter   offered       by   Ayala    Vasquez’s    boss,    a
    17   priest at a local parish.         Although Ayala Vasquez testified
    18   that he spoke with the priest on the day of his uncle’s
    19   murder, the priest made no mention of the murder or threats
    20   to Ayala Vasquez in his corroborating letter.                   A witness’s
    21   omission of facts may be probative if “those facts are ones
    22   the witness would reasonably have been expected to disclose.”
    4
    1   See Hong Fei 
    Gao, 891 F.3d at 78
    .
    2       Although Ayala Vasquez, his wife, and his attorney were
    3   afforded    opportunities         to    explain   these    and    other
    4   inconsistencies, see Ming Shi Xue v. BIA, 
    439 F.3d 111
    , 125
    5   (2d Cir. 2006), they failed to meet their burden to do so.
    6   To secure relief, “[a] petitioner must do more than offer a
    7   plausible explanation for his inconsistent statements . . . ;
    8   he must demonstrate that a reasonable fact-finder would be
    9   compelled to credit his testimony.”          Majidi v. Gonzales, 430
    
    10 F.3d 77
    , 80 (2d Cir. 2005) (emphasis in original) (citation
    11   and internal quotation marks omitted).
    12       Given     the    IJ’s    inconsistency   findings,    the   agency’s
    13   adverse credibility determination is supported by substantial
    14   evidence. *         See     8 U.S.C.   § 1158(b)(1)(B)(iii).       That
    15   determination was dispositive of Ayala Vasquez’s applications
    16   for asylum, withholding of removal, and CAT relief because
    17   all three claims are based on the same factual predicate.
    18   See Paul v. Gonzales, 
    444 F.3d 148
    , 156–57 (2d Cir. 2006).
    * The agency erred in finding Ayala Vasquez’s statements
    inconsistent as to when his uncle was murdered and when he
    was first threatened, but remand to correct these errors would
    be futile given the substantial error-free findings in
    support of the adverse credibility determination. See Xiao
    Ji Chen v. U.S. Dep’t of Justice, 
    471 F.3d 315
    , 339 (2d Cir.
    2006).
    5
    1       For the foregoing reasons, the petition for review is
    2   DENIED.   All pending motions and applications are DENIED and
    3   stays VACATED.
    4                               FOR THE COURT:
    5                               Catherine O’Hagan Wolfe,
    6                               Clerk of Court
    6