Lalvay-Lalvay v. Garland ( 2022 )


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  •      20-1845
    Lalvay-Lalvay v. Garland
    BIA
    Segal, IJ
    A206 838 242
    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 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 22nd day of September, two thousand twenty-
    5   two.
    6
    7   PRESENT:
    8            PIERRE N. LEVAL,
    9            JOSEPH F. BIANCO,
    10            ALISON J. NATHAN,
    11                 Circuit Judges.
    12   _____________________________________
    13
    14   ANDRES LALVAY-LALVAY,
    15            Petitioner,
    16
    17                     v.                                      20-1845
    18                                                             NAC
    19   MERRICK B. GARLAND, UNITED
    20   STATES ATTORNEY GENERAL,
    21            Respondent.
    22   _____________________________________
    23
    24   FOR PETITIONER:                       Michael Borja, Jackson Heights,
    25                                         NY.
    26
    27   FOR RESPONDENT:                       Brian M. Boynton, Acting Assistant
    28                                         Attorney General; Stephen J.
    1                                  Flynn, Assistant Director; Lynda
    2                                  A. Do, Trial Attorney, Office of
    3                                  Immigration Litigation, United
    4                                  States Department of Justice,
    5                                  Washington, DC.
    6         UPON DUE CONSIDERATION of this petition for review of a
    7   Board of Immigration Appeals (“BIA”) decision, it is hereby
    8   ORDERED, ADJUDGED, AND DECREED that the petition for review
    9   is DENIED.
    10         Petitioner Andres Lalvay-Lalvay (“Lalvay”), a native and
    11   citizen of Ecuador, seeks review of a May 27, 2020, decision
    12   of the BIA denying his motion to remand and affirming a June
    13   8, 2018, decision of an Immigration Judge (“IJ”) denying his
    14   application for asylum, withholding of removal, and relief
    15   under the Convention Against Torture (“CAT”).        In re Lalvay-
    16   Lalvay, No. A206 838 242 (B.I.A. May 27, 2020), aff’g No.
    17   A206 838 242 (Immig. Ct. N.Y. City June 8, 2018).         We assume
    18   the   parties’   familiarity    with   the   underlying   facts   and
    19   procedural history.
    20         We have reviewed the IJ’s decision as supplemented by
    21   the BIA.     See Yan Chen v. Gonzales, 
    417 F.3d 268
    , 271 (2d
    22   Cir. 2005).      We review the agency’s “legal conclusions de
    23   novo, and its factual findings, including adverse credibility
    24   determinations, under the substantial evidence standard.”
    2
    1   Y.C. v. Holder, 
    741 F.3d 324
    , 332 (2d Cir. 2013) (quotation
    2   marks omitted).       “[T]he administrative findings of fact are
    3   conclusive    unless       any   reasonable       adjudicator        would    be
    4   compelled     to     conclude     to       the    contrary.”          8 U.S.C.
    5   § 1252(b)(4)(B).         We review the BIA’s denial of a motion to
    6   remand for abuse of discretion.              Li Yong Cao v. U.S. Dep’t
    7   of Justice, 
    421 F.3d 149
    , 157 (2d Cir. 2005).                      The agency
    8   reasonably concluded that Lalvay was not credible as to his
    9   allegations of past persecution on account of either his
    10   political opinion or sexual orientation and that the country
    11   conditions evidence did not establish a pattern or practice
    12   of persecution of gay men.
    13       “Considering the totality of the circumstances, and all
    14   relevant factors, a trier of fact may base a credibility
    15   determination on . . . the consistency between the applicant’s
    16   or witness’s written and oral statements (whenever made and
    17   whether or not under oath, and considering the circumstances
    18   under   which      the    statements       were    made),    the      internal
    19   consistency     of   each    such      statement     .   .   .   ,    and    any
    20   inaccuracies or falsehoods in such statements, without regard
    21   to whether an inconsistency, inaccuracy, or falsehood goes to
    3
    1   the heart of the applicant’s claim, or any other relevant
    2   factor.”   
    8 U.S.C. § 1158
    (b)(1)(B)(iii).   “We defer . . . to
    3   an IJ’s credibility determination unless, from the totality
    4   of the circumstances, it is plain that no reasonable fact-
    5   finder could make such an adverse credibility ruling.”      Xiu
    6   Xia Lin v. Mukasey, 
    534 F.3d 162
    , 167 (2d Cir. 2008); accord
    7   Hong Fei Gao v. Sessions, 
    891 F.3d 67
    , 76 (2d Cir. 2018).
    8       Lalvay alleged that he was harmed by members of the
    9   Movimiento Popular Democratico(“MPD”) party on account of his
    10   support for his cousin’s mayoral campaign for the opposing
    11   Pachakutik Party, and that he had been bullied and harassed
    12   based on his sexual orientation.    He has never disputed that
    13   the agency accurately described the record and that, absent
    14   some explanation beyond that presented at his hearing, the
    15   inconsistencies that the agency identified in the record
    16   provide substantial evidence for its adverse credibility
    17   determination.   These issues are thus waived. 1   See Norton v.
    1 We disagree with the Government’s assessment that Lalvay
    waived   any   challenges   to   the   adverse   credibility
    determination, and with the Government’s and the BIA’s
    assessment that Lalvay waived withholding of removal and CAT
    relief.   Lalvay preserved arguments that his psychological
    conditions explained the inconsistencies, and he was not
    required to separately argue his withholding and CAT claims
    4
    1   Sam’s Club, 
    145 F.3d 114
    , 117 (2d Cir. 1998) (“Issues not
    2   sufficiently argued in the briefs are considered waived and
    3   normally will not be addressed on appeal.”).              In any event,
    4   substantial     evidence   supports       the   adverse     credibility
    5   determination.
    6       The agency reasonably relied on inconsistencies between
    7   Lalvay’s   testimony   and    other    evidence.      See     8    U.S.C.
    8   § 1158(b)(1)(B)(iii).      Lalvay’s oral and written statements
    9   that his cousin lost the election to the MDP and did not hold
    10   any office contradicted letters from his mother, the cousin,
    11   and an attorney asserting that his cousin won a Vice Mayor
    12   seat by a large margin.      The agency was not required to credit
    13   Lalvay’s explanation that he did not know the outcome because
    14   Lalvay   initially   identified     the    wrong   outcome     and   his
    15   cousin’s letter asserted that Lalvay had a leadership role in
    16   the campaign.     The Court defers to an agency’s credibility
    17   determination     “unless,      from      the    totality     of      the
    18   circumstances, it is plain that no reasonable fact-finder
    19   could make such an adverse credibility ruling.” Xiu Xia Lin
    20   v. Mukasey,     
    534 F.3d 162
    , 167 (2d Cir. 2008;            accord Hong
    because the IJ denied all forms of relief on the same grounds.
    5
    1   Fei   Gao   v.   Sessions,   
    891 F.3d 67
    ,   76   (2d    Cir.    2018).
    2   (Lalvay’s hearing testimony also contradicted his statements
    3   at his credible fear interview as to when he began supporting
    4    the Pachakutik Party, when MPD members chased him through a
    5    marketplace, and whether he ever saw two men again after they
    6    sexually harassed him.
    7         These inconsistencies provide substantial support for
    8   the adverse credibility determination because they call into
    9   question    Lalvay’s    political      activities     and     his    only
    10   allegation of physical abuse based on his sexual orientation.
    11   See Xian Tuan Ye v. Dep’t of Homeland Sec., 
    446 F.3d 289
    , 295
    12   (2d Cir. 2006) (upholding adverse credibility determination
    13   based on “a material inconsistency in an aspect of [the
    14   petitioner’s] story that served as an example of the very
    15   persecution from which he sought asylum”); see also Likai Gao
    16   v. Barr, 
    968 F.3d 137
    , 145 n.8 (2d Cir. 2020) (“[E]ven a
    17   single inconsistency might preclude an alien from showing
    18   that an IJ was compelled to find him credible.                 Multiple
    19   inconsistencies would so preclude even more forcefully.”).
    20         The BIA did not abuse its discretion in denying Lalvay’s
    21   motion to remand for further consideration of credibility
    6
    1   based on new evidence because the party moving for reopening
    2   has “‘heavy burden’ of demonstrating that the proffered new
    3   evidence would likely alter the result in h[is] case.”                  Jian
    4   Hui   Shao   v.    Mukasey,    
    546 F.3d 138
    ,   168   (2d   Cir.   2008)
    5   (quoting INS v. Abudu, 
    485 U.S. 94
    , 110 (2d Cir. 1988)).                  The
    6   psychologist’s report diagnosed Lalvay with major depressive
    7   disorder and post-traumatic stress disorder and opined that
    8   he had an impaired ability to communicate clearly and report
    9   an accurate timeline or dates of his experiences.                  The BIA
    10   reasonably concluded that Lalvay had not carried his burden
    11   to show that this evidence was likely to alter the outcome,
    12   because   he did not explain how his symptoms caused                      the
    13   discrepancies      between    his    written    declaration     and    other
    14   documentary       evidence    and    the   inconsistencies      related   to
    15   whether certain events occurred, not just to the timeline of
    16   events.
    17         Because the agency found Lalvay credible as to his sexual
    18   orientation, Lalvay could still establish eligibility for
    19   relief by establishing an “objectively reasonable” fear of
    20   future persecution on that basis.            Ramsameachire v. Ashcroft,
    21   
    357 F.3d 169
    , 178 (2d Cir. 2004).              Absent credible evidence
    7
    1   of his own particular circumstance, however, he had to show
    2   a “pattern or practice” of persecution of gay men.              8 C.F.R.
    3   § 1208.13(b)(2)(iii); Jian Liang v. Garland, 
    10 F.4th 106
    ,
    4   117 (2d Cir. 2021); In re A-M-, 
    23 I. & N. Dec. 737
    , 741
    5    (B.I.A. 2005) (defining a pattern or practice of persecution
    6    as the “systemic or pervasive” persecution of a group).                 He
    7    did not meet that burden.
    8       The record reflects that Ecuadorian law prohibits hate
    9   crimes   and     discrimination   based      on    sexual   orientation,
    10   although    such   discrimination        persists.     It   describes   a
    11   significant cultural divide between older Ecuadorians, and a
    12   more accepting younger generation that came of age following
    13   the 1997 legalization of homosexuality and other significant
    14   legal changes for gay Ecuadorians.                This record does not
    15   compel     the   conclusion   that       discrimination     against   gay
    16   Ecuadorians, even if widespread, is so pervasive and extreme
    17   as to amount to persecution.         Cf. In re A-M-, 
    23 I. & N. Dec. 18
       at 741–42 (finding no pattern or practice where violence was
    19   at hands of private actors and country conditions evidence
    20   referred to “instances of discrimination and harassment”
    21   (quotation marks omitted)).
    8
    1       The record also reflects that physical and sexual abuse
    2   of gay Ecuadorians occurs in “conversion therapy” clinics.
    3   However,   such     clinics    are   illegal,   and   Ecuador’s   former
    4   health minister oversaw the closure of more than 100 of them
    5   between 2012 and 2015.        Those enforcement efforts demonstrate
    6   that such abuses would not be inflicted by the Ecuadorian
    7   government or by persons that the government is unable or
    8    unwilling to control, as necessary to establish persecution.
    9    See Rizal v. Gonzales, 
    442 F.3d 84
    , 92 (2d Cir. 2006).
    10   Further, the record indicates that victims are typically
    11   forced into these illegal clinics by relatives.                   Without
    12   credible      evidence         regarding        Lalvay’s      particular
    13   circumstances, and with no evidence regarding the prevalence
    14   of such conduct among Ecuadorian families, the record does
    15   not compel the conclusion that Lalvay has a reasonable fear
    16   of this type of abuse.
    17       In sum, Lalvay did not meet his burden for asylum because
    18   he did not present credible evidence that he suffered past
    19   harm or was at risk of being singled out for future harm, and
    20   he did not establish that there is a pattern or practice of
    21   persecution    of     gay     men    in   Ecuador.      See   8   U.S.C.
    9
    1   § 1158(b)(1)(B); 
    8 C.F.R. § 1208.13
    (b)(1), (2).        Because
    2   Lalvay failed to meet his burden for asylum, he “necessarily”
    3   failed to meet the higher standards for withholding of removal
    4   and CAT relief.   See Lecaj v. Holder, 
    616 F.3d 111
    , 119–20
    5   (2d Cir. 2010).
    6       For the foregoing reasons, the petition for review is
    7   DENIED.   All pending motions and applications are DENIED and
    8    stays VACATED.
    9                               FOR THE COURT:
    10                               Catherine O’Hagan Wolfe,
    11                               Clerk of Court
    10