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.
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 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.




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 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


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 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


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 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




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