14-1408
Lararayo v. Lynch
BIA
Cheng, IJ
A088 437 328
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 27th day of August, two thousand fifteen.
5
6 PRESENT:
7 REENA RAGGI,
8 DEBRA ANN LIVINGSTON,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 JERONIMO R. LARARAYO, AKA JERONIMO
14 LARA,
15 Petitioner,
16
17 v. 14-1408
18 NAC
19
20 LORETTA E. LYNCH,* UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25
* 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: Visuvanathan Rudrakumaran, Law
2 Offices of Visuvanathan
3 Rudrakumaran, New York, New York.
4
5 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
6 Attorney General; Ernesto H.
7 Molina,Jr., Assistant Director;
8 Andrew N. O’Malley, Trial Attorney,
9 Office of Immigration Litigation,
10 United States Department of Justice,
11 Washington, D.C.
12
13 UPON DUE CONSIDERATION of this petition for review of a
14 Board of Immigration Appeals (“BIA”) decision, it is hereby
15 ORDERED, ADJUDGED, AND DECREED that the petition for review is
16 DENIED.
17 Petitioner Jeronimo R. Lararayo, a native and citizen of
18 Mexico, seeks review of an April 2, 2014, decision of the BIA
19 affirming a January 5, 2012, decision of an Immigration Judge
20 (“IJ”) denying Lararayo’s application for asylum, withholding
21 of removal, and relief under the Convention Against Torture
22 (“CAT”). In re Jeronimo R. Lararayo, No. A088 437 328 (B.I.A.
23 Apr. 2, 2014), aff’g No. A088 437 328 (Immig. Ct. N.Y. City Jan.
24 5, 2012). We assume the parties’ familiarity with the
25 underlying facts and procedural history in this case.
26 Under the circumstances of this case, we review both the
27 BIA and the IJ’s decisions. Yun-Zui Guan v. Gonzales, 432 F.3d
2
1 391, 394 (2d Cir. 2005) (per curiam). The applicable standards
2 of review are well established. See 8 U.S.C. § 1252(b)(4)(B);
3 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per
4 curiam).
5 I. Asylum
6 An alien must demonstrate by clear and convincing evidence
7 that his application for asylum was filed within one year of
8 his arrival in the United States. 8 U.S.C. § 1158(a)(2)(B).
9 However, an untimely filing may be excused if the applicant
10 “demonstrates . . . the existence of changed circumstances which
11 materially affect the applicant’s eligibility for asylum.”
12 Id. § 1158(a)(2)(D). Pursuant to 8 U.S.C. § 1158(a)(3), we
13 lack jurisdiction to review the agency’s determination that an
14 asylum application is untimely, but retain jurisdiction to
15 review constitutional claims and questions of law. Id.
16 § 1252(a)(2)(D); see Xia Ji Chen v. U.S. Dep’t of Justice, 471
17 F.3d 315, 329 (2d Cir. 2006).
18 Lararayo argues that the agency committed legal error by
19 refusing to consider his argument that an increase in cartel
20 violence around 2009 constitutes changed circumstances
21 excusing his untimely filing. This argument raises a question
3
1 of law over which we retain jurisdiction. Shi Jie Ge v. Holder,
2 588 F.3d 90, 94-95 (2d Cir. 2009). However, the IJ considered
3 whether any changed circumstances excused Lararayo’s untimely
4 application, explaining at length that his varying explanations
5 were inconsistent with one another and were insufficient to
6 excuse his delay even after conditions in the relevant region
7 of Mexico allegedly deteriorated.
8 II. Withholding of Removal and CAT Relief
9 For asylum applications like Lararayo’s, governed by the
10 REAL ID Act, the agency may, “[c]onsidering the totality of the
11 circumstances . . . base a credibility determination on the
12 demeanor, candor, or responsiveness of the applicant or
13 witness, the inherent plausibility of the applicant’s or
14 witness’s account,” and inconsistencies in an applicant’s
15 statements and other record evidence “without regard to
16 whether” they go “to the heart of the applicant’s claim.”
17 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 166-67.
18 Here, the agency’s adverse credibility determination is
19 supported by substantial evidence.
20 The IJ reasonably relied on Lararayo’s inability to testify
21 in any detail about his activities as a police officer. This
4
1 was a reasonable basis for an adverse credibility
2 determination, as Lararayo’s past employment was the basis for
3 his claims for relief. Zhou Yun Zhang v. INS, 386 F.3d 66, 74
4 (2d Cir. 2004), overruled on other grounds by Shi Liang Lin v.
5 U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007) (en banc).
6 Lararayo presented proof that both he and his brother were
7 police officers, but the documents he submitted were
8 substantially different from one another. The IJ reasonably
9 relied on this inconsistency and was not required to credit
10 Lararayo’s explanation for it. Zhou Yun Zhang, 386 F.3d at 74;
11 Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
12 Moreover, the IJ reasonably found that Lararayo’s credibility
13 was undermined by his failure to further corroborate his claim
14 that he was a police officer. Biao Yang v. Gonzales, 496 F.3d
15 268, 273 (2d Cir. 2007) (per curiam).
16 Finally, the IJ reasonably relied on her observations of
17 Lararayo’s evasive and nonresponsive answers to questions
18 related to the discrepancies between his statements. This
19 Court grants “particular deference” to the IJ’s demeanor
20 findings. Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113
21 (2d Cir. 2005).
5
1 Considering the foregoing, the “totality of the
2 circumstances” supports the IJ’s adverse credibility
3 determination. Xiu Xia Lin, 534 F.3d at 167. This finding was
4 sufficient to deny withholding of removal and CAT relief, as
5 both forms of relief relied on the same factual predicate. See
6 Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). Because
7 the adverse credibility determination is dispositive, we do not
8 reach Lararayo’s additional arguments concerning burden of
9 proof.
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, any stay of removal
12 that the Court previously granted in this petition is VACATED,
13 and any pending motion for a stay of removal in this petition
14 is DISMISSED as moot. Any pending request for oral argument
15 in this petition is DENIED in accordance with Federal Rule of
16 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
17 34.1(b).
18 FOR THE COURT:
19 Catherine O=Hagan Wolfe, Clerk
6