18-195
Gamarro Meneses v. Barr
BIA
Ruehle, IJ
A201 217 060
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 21st day of October, two thousand nineteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 RAYMOND J. LOHIER, JR.,
10 RICHARD J. SULLIVAN,
11 Circuit Judges.
12 _____________________________________
13
14 SAUL GAMARRO MENESES,
15 Petitioner,
16
17 v. 18-195
18 NAC
19 WILLIAM P. BARR, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Jose Perez, Law Offices of Jose
25 Perez, P.C., Syracuse, NY.
26
27 FOR RESPONDENT: Joseph H. Hunt, Assistant
28 Attorney General; Justin Markel,
29 Senior Litigation Counsel;
30 Virginia Lum, Attorney, Office of
31 Immigration Litigation, United
32 States Department of Justice,
33 Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Saul Gamarro Meneses, a native and citizen of
6 Guatemala, seeks review of a December 21, 2017, decision of
7 the BIA affirming a March 10, 2017, decision of an Immigration
8 Judge (“IJ”) denying asylum, withholding of removal, and
9 relief under the Convention Against Torture (“CAT”). In re
10 Saul Gamarro Meneses, No. A201 217 060 (B.I.A. Dec. 21, 2017),
11 aff’g No. A201 217 060 (Immig. Ct. Buffalo Mar. 10, 2017).
12 We assume the parties’ familiarity with the underlying facts
13 and procedural history in this case.
14 We have reviewed both the IJ’s and the BIA’s decisions
15 “for the sake of completeness.” Wangchuck v. Dep’t of
16 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review
17 the agency’s adverse credibility determination for
18 substantial evidence. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei
19 Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). “Considering
20 the totality of the circumstances, and all relevant factors,
21 a trier of fact may base a credibility determination on the
22 demeanor, candor, or responsiveness of the applicant . . . ,
23 the consistency between the applicant’s . . . written and
24 oral statements . . . , the internal consistency of each such
2
1 statement, [and] the consistency of such statements with
2 other evidence of record . . . without regard to whether an
3 inconsistency, inaccuracy, or falsehood goes to the heart of
4 the applicant’s claim, or any other relevant factor.” 8
5 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
6 credibility determination unless, from the totality of the
7 circumstances, it is plain that no reasonable fact-finder
8 could make such an adverse credibility ruling.” Xiu Xia Lin
9 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei
10 Gao, 891 F.3d at 76. The multiple inconsistencies in Gamarro
11 Meneses’s statements regarding the basis for the alleged
12 persecution and the incidents of past harm provide
13 substantial evidence for the agency’s adverse credibility
14 determination.
15 Gamarro Meneses alleged persecution by the Guatemalan
16 government, specifically that the government colluded with
17 drug traffickers and seized land from him or his community to
18 build an airstrip. Gamarro Meneses’s testimony, written
19 statements, and documentary evidence were inconsistent as to
20 whether he owned the disputed land or whether his employees
21 or a community owned it, and as to who seized the land and
22 for what purpose. These inconsistencies called into question
23 the central tenet of his claim and support the agency’s
24 adverse credibility determination. See Xian Tuan Ye v. Dep’t
3
1 of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006) (holding
2 that a material inconsistency regarding the basis of an
3 applicant’s asylum claim is substantial evidence of adverse
4 credibility). Gamarro Meneses did not provide a compelling
5 explanation for these discrepancies. See Majidi v. Gonzales,
6 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more
7 than offer a plausible explanation for . . . inconsistent
8 statements to secure relief; he must demonstrate that a
9 reasonable fact-finder would be compelled to credit his
10 testimony.” (internal quotations omitted)).
11 Moreover, the agency did not err in relying on Gamarro
12 Meneses’s failure to testify about all the incidents of past
13 harm. He told immigration officials that he was attacked in
14 2007 and accused of possessing a bomb, that his son was
15 kidnapped, and that he was shot at three times. But he
16 testified about none of these. The agency reasonably relied
17 on these omissions given the severity of the alleged
18 incidents. See Hong Fei Gao, 891 F.3d at 78-79 (“[I]n
19 assessing the probative value of the omission of certain
20 facts, an IJ should consider whether those facts are ones
21 that a credible petitioner would reasonably have been
22 expected to disclose under the relevant circumstances.”).
23 The IJ was not required to accept Gamarro Meneses’s testimony
24 that he initially forgot one time he was shot at, given the
4
1 significance of such an event to his claim. See Majidi, 430
2 F.3d at 80–81.
3 The agency also reasonably relied on Gamarro Meneses’s
4 conflicting accounts of his abandonment of his Canadian
5 asylum application and whether he returned to Guatemala since
6 fleeing for his life in 2008. See Xiu Xia Lin, 534 F.3d at
7 167 (“[A]n IJ may rely on any inconsistency . . . in making
8 an adverse credibility determination as long as the ‘totality
9 of the circumstances’ establishes that an asylum applicant is
10 not credible.” (quoting 8 U.S.C. § 1158(b)(1)(B)(iii))).
11 Having questioned Gamarro Meneses’s credibility, the
12 agency reasonably relied on his failure to rehabilitate his
13 testimony with reliable corroborating evidence. “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.” Biao Yang v.
18 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). As the IJ found,
19 Gamarro Meneses’s documents did not list him as the landowner,
20 and he failed to produce documents he allegedly had to
21 corroborate his alleged complaints or cooperation with U.S.
22 authorities.
23 Given the inconsistencies, omissions, and lack of
24 reliable corroboration, the adverse credibility determination
5
1 is supported by substantial evidence. See 8 U.S.C.
2 § 1158(b)(1)(B)(iii). That determination is dispositive of
3 asylum, withholding of removal, and CAT relief because all
4 three claims were based on the same factual predicate. See
5 Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
6 For the foregoing reasons, the petition for review is
7 DENIED. All pending motions are hereby DENIED and stays are
8 VACATED.
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe,
11 Clerk of Court
6