Ayala Vasquez v. Barr ( 2020 )

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