Gabriel-Lopez v. Barr

18-196 Gabriel-Lopez v. Barr BIA Ruehle, IJ A208 179 321/322 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 15th day of July, two thousand nineteen. 5 6 PRESENT: 7 ROBERT A. KATZMANN, 8 Chief Judge, 9 JON O. NEWMAN, 10 DENNY CHIN, 11 Circuit Judges. 12 _____________________________________ 13 14 ARELI GABRIEL-LOPEZ, LEONARDO 15 LOPEZ-GABRIEL, 16 Petitioners, 17 18 v. 18-196 19 NAC 20 WILLIAM P. BARR, UNITED STATES 21 ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ 24 25 FOR PETITIONERS: Jose Perez, Law Offices of Jose 26 Perez, P.C., Syracuse, NY. 27 28 29 FOR RESPONDENT: Joseph H. Hunt, Assistant 30 Attorney General; Anthony P. 31 Nicastro, Assistant Director; 32 Linda Y. Cheng, Trial Attorney, 33 Office of Immigration Litigation, 1 United States Department of 2 Justice, Washington, 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 Petitioners Areli Gabriel-Lopez and her son, Leonardo 9 Lopez-Gabriel, natives and citizens of Guatemala, seek review 10 of a December 18, 2017 decision of the BIA affirming a January 11 27, 2017 decision of an Immigration Judge (“IJ”) denying 12 asylum, withholding of removal, and relief under the 13 Convention Against Torture ("CAT"). In re Areli Gabriel- 14 Lopez, Leonardo Lopez-Gabriel, Nos. A208 179 321/322 (B.I.A. 15 Dec. 18, 2017), aff’g Nos. A208 179 321/322 (Immig. Ct. 16 Buffalo Jan. 27, 2017). We assume the parties’ familiarity 17 with the underlying facts and procedural history in this case. 18 Under the circumstances of this case, we have reviewed 19 the IJ’s decision as modified and supplemented by the 20 BIA. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d 21 Cir. 2005); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 22 520, 522 (2d Cir. 2005). The applicable standards of review 23 are well established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei 24 Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing 2 1 adverse credibility determination for substantial evidence). 2 “Considering the totality of the circumstances,” a 3 factfinder “may base a credibility determination on . . . the 4 consistency between the applicant’s . . . written and oral 5 statements . . . , the internal consistency of each such 6 statement, [and] the consistency of such statements with 7 other evidence of record.” 8 U.S.C. § 1158(b)(1)(B)(iii); 8 see Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163-64 (2d Cir. 9 2008). “We defer . . . to an IJ’s credibility determination 10 unless, from the totality of the circumstances, it is plain 11 that no reasonable fact-finder could make such an adverse 12 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. The 13 agency’s adverse credibility finding is supported by 14 substantial evidence. 15 The agency reasonably relied on multiple inconsistencies 16 in Gabriel-Lopez’s testimony, application, and documentary 17 evidence to support the adverse credibility determination. 18 See 8 U.S.C. § 1158(b)(1)(B)(iii). Gabriel-Lopez was 19 inconsistent about when she fled to Mexico and how long she 20 lived there, whether her former partner had a gun when he 21 looked for her in Mexico, and whether she showed the police 22 an anonymous note she had received. The inconsistencies -- 3 1 which go to the heart of Gabriel-Lopez's claim -- were 2 apparent from the record and to the extent that Gabriel-Lopez 3 explained that she was confused, the agency was not compelled 4 to accept that explanation. See Majidi v. Gonzales, 430 F.3d 5 77, 80 (2d Cir. 2005) (“A petitioner must do more than offer 6 a plausible explanation for h[er] inconsistent statements to 7 secure relief; [s]he must demonstrate that a reasonable fact- 8 finder would be compelled to credit h[er] testimony.” 9 (internal quotation marks omitted)). 10 Having questioned Gabriel-Lopez’s credibility, the 11 agency reasonably relied on her failure to rehabilitate her 12 testimony with reliable corroborating evidence. See Biao 13 Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An 14 applicant’s failure to corroborate his or her testimony may 15 bear on credibility, because the absence of corroboration in 16 general makes an applicant unable to rehabilitate testimony 17 that has already been called into question.”). First, the 18 agency reasonably concluded that the statement from Gabriel- 19 Lopez’s mother was from an interested party not subject to 20 cross-examination and that it contradicted Gabriel-Lopez’s 21 testimony regarding whether she received threats when she 22 returned to Guatemala. See Y.C. v. Holder, 741 F.3d 324, 334 4 1 (2d Cir. 2013) (holding that “[w]e defer to the agency's 2 determination of the weight afforded to an alien’s 3 documentary evidence” and deferring to agency’s decision to 4 afford little weight to spouse’s letter because it was unsworn 5 and from an interested witness). Second, the agency was not 6 required to credit the complaint Gabriel-Lopez allegedly 7 filed with the police because of her inconsistent 8 descriptions of the document. See Y.C., 741 F.3d at 332. 9 Third, the agency reasonably relied on the fact that Gabriel- 10 Lopez failed to submit evidence of her alleged relationship 11 with her former partner despite her testimony that they had 12 cohabitated for a year.1 See Biao Yang, 496 F.3d at 273. 13 Given the inconsistencies identified by the agency and 14 the lack of reliable corroboration, we conclude that the 15 adverse credibility determination is supported by substantial 16 evidence. See Xiu Xia Lin, 534 F.3d at 165-66. That 1 We note that the agency erred in requiring evidence of Gabriel- Lopez’s son’s paternity because she testified that her partner refused to acknowledge paternity at the time of their son’s birth and was never involved in his life. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 404 (2d Cir. 2005) (finding it unreasonable to expect a document from an alleged persecutor). Given the other bases for the agency's decision, however, we conclude that remand is not warranted. See Hong Fei Gao, 891 F.3d at 82 (noting that remand is warranted in cases where “we cannot confidently predict” that the IJ would have reached same decision). 5 1 determination is dispositive of asylum, withholding of 2 removal, and CAT relief because all three claims are based on 3 the same factual predicate. See Paul v. Gonzales, 444 F.3d 4 148, 156-57 (2d Cir. 2006). 5 For the foregoing reasons, the petition for review is 6 DENIED. As we have completed our review, any stay of removal 7 that the Court previously granted in this petition is VACATED, 8 and any pending motion for a stay of removal in this petition 9 is DISMISSED as moot. Any pending request for oral argument 10 in this petition is DENIED in accordance with Federal Rule of 11 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 12 34.1(b). 13 FOR THE COURT: 14 Catherine O’Hagan Wolfe, 15 Clerk of Court 6