13-4813
Jonatan v. Lynch
BIA
Elstein, IJ
A094 824 682
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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 15th day of July, two thousand fifteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 JOHN M. WALKER, JR.,
10 DENNY CHIN,
11 Circuit Judges.
12 _____________________________________
13
14 ANDREAS JONATAN, AKA IRHAN
15 YONATA,
16 Petitioner,
17
18 v. 13-4813
19 NAC
20 LORETTA E. LYNCH, JR., UNITED
21 STATES ATTORNEY GENERAL,
22 Respondent.1
23
24 _____________________________________
1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Loretta E. Lynch is
automatically substituted for former Attorney General
Eric H. Holder, Jr.
1 FOR PETITIONER: Scott Eric Bratton, Cleveland, Ohio.
2
3 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
4 Attorney General; Julie M. Iversen,
5 Senior Litigation Counsel; Jeffrey
6 R. Meyer, Attorney, Office of
7 Immigration Litigation, United
8 States Department of Justice,
9 Washington D.C.
10 UPON DUE CONSIDERATION of this petition for review of a
11 Board of Immigration Appeals (“BIA”) decision, it is hereby
12 ORDERED, ADJUDGED, AND DECREED that the petition for review
13 is DENIED.
14 Andreas Jonatan, a native and citizen of Indonesia,
15 seeks review of a November 26, 2013, decision of the BIA,
16 affirming the December 14, 2011, decision of an Immigration
17 Judge (“IJ”), denying his application for asylum,
18 withholding of removal, and relief pursuant to the
19 Convention Against Torture (“CAT”). In re Andreas Jonatan,
20 No. A094 824 682 (B.I.A. Nov. 26, 2013), aff’g No. A094 824
21 682 (Immig. Ct. N.Y. City Dec. 14, 2011). We assume the
22 parties’ familiarity with the underlying facts and
23 procedural history in this case.
24 We have reviewed the IJ’s decision as modified by the
25 BIA decision. See Xue Hong Yang v. U.S. Dep’t of Justice,
26 426 F.3d 520, 522 (2d Cir. 2005). The applicable standards
2
1 of review are well established. 8 U.S.C. § 1252(b)(4)(B);
2 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
3 I. Asylum
4 “[A]n asylum application is frivolous if any of its
5 material elements is deliberately fabricated. Such finding
6 shall only be made if the [IJ or BIA] is satisfied that the
7 applicant, during the course of the proceedings, has had
8 sufficient opportunity to account for any discrepancies or
9 implausible aspects of the claim.” 8 C.F.R. § 1208.20.
10 Here, the IJ reasonably found that Jonatan filed a frivolous
11 asylum application.
12 In finding Jonatan’s asylum application frivolous, the
13 IJ met all of the required procedural safeguards. See Biao
14 Yang v. Gonzales, 496 F.3d 268, 275 (2d Cir. 2007) (per
15 curiam). Indeed, Jonatan was given written warning of the
16 consequences of filing a frivolous asylum application, which
17 constituted adequate notice. See Gade Niang v. Holder, 762
18 F.3d 251, 254 (2d Cir. 2014) (per curiam). Furthermore, the
19 IJ made a specific finding that Jonatan knowingly filed a
20 frivolous application reasonably relying on Jonatan’s
21 admission that his original asylum application was submitted
22 under a false identity and contained fabricated events and
3
1 documentation. Finally, the IJ gave him an opportunity to
2 account for the discrepancies, which Jonatan admitted were
3 due to the fact that he lied on his original asylum
4 application.
5 II. Withholding of Removal and CAT Relief
6 For asylum applications governed by the REAL ID Act,
7 such as Jonatan’s, the agency may base a credibility finding
8 on inconsistencies in an asylum applicant’s statements
9 “without regard to whether” they go “to the heart of the
10 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We
11 defer . . . to an IJ’s credibility determination unless,
12 from the totality of the circumstances, it is plain that no
13 reasonable fact-finder could make such an adverse
14 credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162,
15 167 (2d Cir. 2008) (per curiam). Here, the adverse
16 credibility determination is supported by substantial
17 evidence.
18 First, the agency reasonably determined that the
19 numerous deliberate falsifications in Jonatan’s original
20 asylum application called into question the believability of
21 his amended application. “We have ‘frequently . . . held
22 [that] an IJ’s application of the maxim falsus in uno,
4
1 falsus in omnibus [false in one thing, false in everything]
2 may at times be appropriate.’” Siewe v. Gonzales, 480 F.3d
3 160, 170 (2d Cir. 2007) (alterations in original) (quoting
4 Lin Zhong v. U.S. Dep't of Justice, 461 F.3d 101, 123 (2d
5 Cir. 2006)).
6 The agency also reasonably determined that
7 inconsistencies in Jonatan’s evidence regarding the number
8 of times he was attacked in June 1990, whether he was
9 verbally threatened during a robbery, and whether a bomb
10 exploded near his church reflected negatively on his
11 credibility. The agency was not required to credit his
12 explanations for these inconsistencies. See Majidi v.
13 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
14 The agency also found that Jonatan failed to adequately
15 corroborate his claim. An applicant’s failure to
16 corroborate testimony may bear on credibility, either
17 because the absence of particular corroborating evidence is
18 viewed as suspicious, or because the absence of
19 corroboration in general makes an applicant unable to
20 rehabilitate testimony that has already been called into
21 question. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
22 Cir. 2007) (per curiam). Jonatan does not challenge that
5
1 finding. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541
2 n.1 (2d Cir. 2005).
3 Given the frivolousness, inconsistency, and
4 corroboration findings, substantial evidence supports the
5 agency’s adverse credibility determination. See Xiu Xia
6 Lin, 534 F.3d at 167. Although that determination was
7 dispositive of withholding of removal and CAT relief, see
8 Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006), we
9 nevertheless review and find reasonable the agency’s
10 alternative finding that Jonatan failed to satisfy his
11 burden of proof for CAT relief. See Santoso v. Holder, 580
12 F.3d 110, 112 (2d Cir. 2009) (per curiam); see also Jian
13 Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005).
14 For the foregoing reasons, the petition for review is
15 DENIED. As we have completed our review, any stay of
16 removal that the Court previously granted in this petition
17 is VACATED, and any pending motion for a stay of removal in
18 this petition is DISMISSED as moot. Any pending request for
19 oral argument in this petition is DENIED in accordance with
20 Federal Rule of Appellate Procedure 34(a)(2), and Second
21 Circuit Local Rule 34.1(b).
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
24
25
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