18-3125
Gonzalez-Aucay v. Barr
BIA
Straus, IJ
A208 538 178
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 April, two thousand twenty.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 SUSAN L. CARNEY,
10 JOSEPH F. BIANCO,
11 Circuit Judges.
12 _____________________________________
13
14 HENRY VINICIO GONZALEZ-AUCAY,
15 Petitioner,
16
17 v. 18-3125
18 NAC
19 WILLIAM P. BARR, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Gregory Osakwe, Esq., Hartford,
25 CT.
26
27 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
28 General; Derek C. Julius,
1 Assistant Director; Zoe J. Heller,
2 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 Henry Vinicio Gonzalez-Aucay, a native and
11 citizen of Ecuador, seeks review of a 2018 decision of the
12 BIA affirming a 2017 decision of an Immigration Judge (“IJ”)
13 denying Gonzalez-Aucay’s application for asylum, withholding
14 of removal, and relief under the Convention Against Torture
15 (“CAT”). In re Henry Vinicio Gonzalez-Aucay, No. A 208 538
16 178 (B.I.A. Sept. 24, 2018), aff’g No. A 208 538 178 (Immig.
17 Ct. Hartford Sept. 11, 2017). We assume the parties’
18 familiarity with the underlying facts and procedural history,
19 to which we refer only as necessary to explain our decision
20 to deny the petition.
21 We have reviewed both the IJ’s and BIA’s decisions “for
22 the sake of completeness.” Wangchuck v. Dep’t of Homeland
23 Sec., Immigration & Customs Enf’t, 448 F.3d 524, 528 (2d Cir.
24 2006). The applicable standards of review are well
2
1 established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.
2 Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing adverse
3 credibility determination under a substantial evidence
4 standard).
5 “Considering the totality of the circumstances, and all
6 relevant factors, a trier of fact may base a credibility
7 determination on . . . the consistency between the applicant’s
8 . . . written and oral statements . . . , the internal
9 consistency of each such statement, . . . and any inaccuracies
10 or falsehoods in such statements . . . .” 8 U.S.C.
11 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility
12 determination unless . . . it is plain that no reasonable
13 fact-finder could make such an adverse credibility ruling.”
14 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008);
15 accord Hong Fei Gao, 891 F.3d at 76. Substantial evidence
16 supports the agency’s adverse credibility determination.
17 As the agency reasonably found, Gonzalez-Aucay’s
18 descriptions of the relevant events were inconsistent in
19 multiple ways. His application described three different
20 encounters with government officials or police officers, but
21 the statements he made about them at his hearing conflicted
3
1 with his application’s description. First, as to the dates
2 of the incidents, his testimony was inconsistent with his
3 application regarding whether approximately one month elapsed
4 between the first and second encounters or only a few days to
5 a week. His testimony was internally inconsistent and also
6 inconsistent with his application regarding the length of
7 time that passed between the second and third incidents.
8 Second, Gonzalez-Aucay’s application and testimony were
9 inconsistent regarding whether he was beaten during the
10 second incident or the third. Third, his application and
11 testimony were inconsistent as to whether he was pulled over
12 by individuals traveling in a police car or on foot and
13 whether police officers participated in beating him. Fourth,
14 his testimony, statements made by him during his credible
15 fear interview, and statements made in his application were
16 inconsistent regarding whether police officers tried to shoot
17 him. Although Gonzalez-Aucay blamed these inconsistencies on
18 mere memory lapses caused by the passage of time, the IJ was
19 not required to accept the explanation because it did not
20 resolve the inconsistencies. See Majidi v. Gonzales, 430
21 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more than
4
1 offer a plausible explanation for his inconsistent statements
2 to secure relief; he must demonstrate that a reasonable fact-
3 finder would be compelled to credit his testimony.” (internal
4 quotation marks and citations omitted) (emphasis in
5 original)).
6 All of the inconsistencies relied on by the IJ and
7 discussed above relate to the three alleged incidents of past
8 persecution, and provide substantial evidence for the adverse
9 credibility determination. See Xian Tuan Ye v. Dep’t of
10 Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006) (holding that
11 “a material inconsistency in an aspect of [the applicant]’s
12 story that served as an example of the very persecution from
13 which he sought asylum” can provide substantial evidence for
14 an adverse credibility ruling (quoting Majidi, 430 F.3d at
15 81)). Because Gonzalez-Aucay’s persecution claims all rested
16 on the same factual predicate, the IJ’s adverse credibility
17 determination is dispositive of his requests for asylum,
18 withholding of removal, and CAT relief. See Paul v. Gonzales,
19 444 F.3d 148, 156–57 (2d Cir. 2006). Having arrived at this
20 conclusion, we do not consider the agency’s alternative
21 findings. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As
5
1 a general rule courts and agencies are not required to make
2 findings on issues the decision of which is unnecessary to
3 the results they reach.”).
4 For the foregoing reasons, the petition for review is
5 DENIED. All pending motions and applications are DENIED and
6 stays VACATED.
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe,
9 Clerk of Court
6
Gonzalez-Aucay v. Barr
Combined Opinion