Bladimir-Acosta v. Barr

18-952 Bladimir-Acosta v. Barr BIA Laforest, IJ A 079 797 071 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 2nd day of September, two thousand twenty. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 RAYMOND J. LOHIER, JR., 9 RICHARD J. SULLIVAN, 10 Circuit Judges. 11 _____________________________________ 12 13 HENRY BLADIMIR-ACOSTA, 14 Petitioner, 15 16 v. 18-952 17 NAC 18 WILLIAM P. BARR, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: David Jadidian, Esq., Jackson 24 Heights, NY. 25 26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 27 General; Linda S. Wernery, 28 Assistant Director; Gerald M. 1 Alexander, Trial Attorney, Office 2 of Immigration Litigation, United 3 States Department of Justice, 4 Washington, DC. 5 UPON DUE CONSIDERATION of this petition for review of a 6 Board of Immigration Appeals (“BIA”) decision, it is hereby 7 ORDERED, ADJUDGED, AND DECREED that the petition for review 8 is DENIED. 9 Petitioner Henry Bladimir-Acosta, a native and citizen 10 of Ecuador, seeks review of a March 7, 2018 decision of the 11 BIA affirming a June 9, 2017 decision of an Immigration Judge 12 (“IJ”) denying his application for withholding of removal and 13 relief under the Convention Against Torture (“CAT”). 1 In re 14 Henry Bladimir-Acosta, No. A 079 797 071 (B.I.A. Mar. 7, 15 2018), aff’g No. A 079 797 071 (Immig. Ct. N.Y. City Jun. 16 9, 2017). We assume the parties’ familiarity with the 17 underlying facts and procedural history. 18 Under the circumstances of this case, we have reviewed 19 both the IJ’s and BIA’s decisions “for the sake of 20 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 21 524, 528 (2d Cir. 2006). The applicable standards of review 1Bladimir-Acosta does not challenge the agency’s denial of asylum as time barred. 2 1 are well established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei 2 Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing 3 adverse credibility determination for substantial evidence). 4 We deny the petition because the adverse credibility 5 determination is supported by substantial evidence. 6 “Considering the totality of the circumstances, and all 7 relevant factors, a trier of fact may base a credibility 8 determination on the demeanor, candor, or responsiveness of 9 the applicant . . . , the consistency between the applicant’s 10 . . . written and oral statements . . . , the internal 11 consistency of each such statement, [and] the consistency of 12 such statements with other evidence of record . . . without 13 regard to whether an inconsistency, inaccuracy, or falsehood 14 goes to the heart of the applicant’s claim, or any other 15 relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer 16 . . . to an IJ’s credibility determination unless, from the 17 totality of the circumstances, it is plain that no reasonable 18 fact-finder could make such an adverse credibility ruling.” 19 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); 20 accord Hong Fei Gao, 891 F.3d at 76. 3 1 The agency properly considered two omissions in Bladimir- 2 Acosta’s asylum application to find him not credible. First, 3 Bladimir-Acosta failed to include the main basis of his 4 alleged fear — that he fled Ecuador to escape gang members 5 who were targeting him for his religious work rehabilitating 6 other gang members — in his original application for relief. 7 Second, despite including this fear of gangs in a supplemental 8 statement written a year after he filed for asylum, Bladimir- 9 Acosta failed to mention in the statement that gang members 10 attacked him more than once. While the agency may err if it 11 relies too heavily on minor omissions — at least where the 12 omitted information would have supplemented, rather than 13 contradicted, earlier statements — the agency did not err 14 here because Bladimir-Acosta would reasonably have been 15 expected to disclose the primary basis for his claim and both 16 incidents of past harm that caused him to flee Ecuador. See 17 Ming Zhang v. Holder, 585 F.3d 715, 726 (2d Cir. 2009) 18 (holding that the agency may “draw an adverse inference about 19 petitioner’s credibility based, inter alia, on h[is] failure 20 to mention” important details or events in prior statements); 21 see also Hong Fei Gao, 891 F.3d at 78 (holding that “the 4 1 probative value of a witness’s prior silence on particular 2 facts depends on whether those facts are ones the witness 3 would reasonably have been expected to disclose”). 4 Having reasonably determined that Bladimir-Acosta’s 5 credibility was in question, the agency also appropriately 6 relied on his failure to rehabilitate his testimony with 7 reliable corroborating evidence. See Biao Yang v. Gonzales, 8 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s failure to 9 corroborate his or her testimony may bear on credibility, 10 because the absence of corroboration in general makes an 11 applicant unable to rehabilitate testimony that has already 12 been called into question.”). While it is true that 13 Bladimir-Acosta submitted evidence that corroborated his 14 religious work, including letters from his church in Ecuador 15 and a fellow pastor, the agency did not err in declining to 16 afford significant weight to these documents since they did 17 not corroborate any details of his alleged past persecution 18 by gang members. See Y.C. v. Holder, 741 F.3d 324, 333 (2d 19 Cir. 2013) (“We generally defer to the agency’s evaluation of 20 the weight to be afforded an applicant’s documentary 21 evidence.”). The only reference to any past harm was the 5 1 fellow pastor’s statement that a group of people who did not 2 agree with them once attacked them. But the pastor did not 3 provide any details, such as when the attack occurred, if it 4 was an isolated incident, whether the attack was physical, if 5 anyone was injured, and whether the attackers were gang 6 members. 7 Accordingly, given the omissions of the main asylum claim 8 and then of one of the two allegations of past harm, as well 9 as the absence of any detailed corroboration about the alleged 10 harm, the adverse credibility determination is supported by 11 substantial evidence. See Xiu Xia Lin, 534 F.3d at 165–66; 12 see also Xian Tuan Ye v. DHS, 446 F.3d 289, 295 (2d Cir. 2006) 13 (holding that even a single inconsistency is sufficient to 14 support an adverse credibility determination if it is 15 material and relates to “an example of the very persecution 16 from which” the applicant seeks relief (internal quotation 17 marks omitted)). The adverse credibility determination is 18 dispositive of withholding of removal and CAT relief because 19 both forms of relief were based on the same discredited 20 factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156– 21 57 (2d Cir. 2006). Because the adverse credibility 6 1 determination is dispositive, we do not reach the agency’s 2 alternate bases for its denial of relief. See INS 3 v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule 4 courts and agencies are not required to make findings on 5 issues the decision of which is unnecessary to the results 6 they reach.”). 7 For the foregoing reasons, the petition for review is 8 DENIED. All pending motions and applications are DENIED and 9 stays VACATED. 10 FOR THE COURT: 11 Catherine O’Hagan Wolfe, 12 Clerk of Court 7