20-3403
Munoz v. Garland
BIA
Ruehle, IJ
A205 983 097
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 9th day of March, two thousand twenty-two.
PRESENT:
JOHN M. WALKER, JR.,
REENA RAGGI,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
MIZRAIM JAAZIEL BARRIOS MUNOZ,
Petitioner,
v. 20-3403
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Stephen K. Tills, Esq., Orchard
Park, NY.
FOR RESPONDENT: Brian Boynton, Acting Assistant
Attorney General; Jonathan
Robbins, Senior Litigation
Counsel; Timothy Bo Stanton, Trial
Attorney, Office of Immigration
Litigation, United States
Department of Justice, Washington,
DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Mizraim Jaaziel Barrios Munoz, a native and
citizen of Guatemala, seeks review of a September 4, 2020,
decision of the BIA affirming a June 18, 2018, decision of an
Immigration Judge (“IJ”) denying asylum, withholding of
removal, and protection under the Convention Against Torture
(“CAT”). In re Barrios Munoz, No. A 205 983 097 (B.I.A. Sep.
4, 2020), aff’g No. A 205 983 097 (Immig. Ct. Buffalo June 18,
2018). We assume the parties’ familiarity with the
underlying facts and procedural history.
We review the IJ’s decision as supplemented by the
BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.
2005). The applicable standards of review are well
established. See Yanqin Weng v. Holder, 562 F.3d 510, 513
(2d Cir. 2009) (reviewing factual findings for substantial
evidence and questions of law de novo); Hong Fei Gao v.
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Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing adverse
credibility determination under a substantial evidence
standard).
As an initial matter, Munoz’s argument that his Notice
to Appear (“NTA”) was insufficient to vest jurisdiction with
the agency because it omitted the date of his initial hearing
is foreclosed by Banegas Gomez v. Barr, in which we held that
Pereira v. Sessions, 138 S. Ct. 2105 (2018), addresses a
narrow question regarding the stop-time rule and does not
“void jurisdiction in cases in which an NTA omits a hearing
time or place” or require specification of the time and date
of the initial hearing, “at least so long as a notice of
hearing specifying this information is later sent to the
alien.” 922 F.3d 101, 110–12 (2d Cir. 2019); see also Chery
v. Garland, 16 F.4th 980, 987 (2d Cir. 2021) (holding that
“Banegas Gomez remains good law even after . . . Niz-Chavez
[v. Garland, 141 S. Ct. 1474 (2021)]”). It is undisputed that
Munoz received hearing notices with the missing information.
Turning to the merits of the agency’s decision, we
conclude that substantial evidence supports the agency’s
adverse credibility determination. “Considering the
3
totality of the circumstances, and all relevant factors, a
trier of fact may base a credibility determination on”
inconsistencies within and between an applicant’s statements
and other evidence. 8 U.S.C. § 1158(b)(1)(B)(iii). “We
defer . . . to an IJ’s credibility determination unless, from
the totality of the circumstances, it is plain that no
reasonable fact-finder could make such an adverse credibility
ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
2008); accord Hong Fei Gao, 891 F.3d at 76.
The agency reasonably relied on multiple inconsistencies
among Munoz’s statements and evidence regarding the years
when each attack occurred and when the gang first confronted
him, whether he was hospitalized after the second attack, and
whether the local authorities would protect him. See 8
U.S.C. § 1158(b)(1)(B)(iii). The agency also reasonably
relied on omissions from Munoz’s application. See Xiu Xia
Lin, 534 F.3d at 167. Munoz’s application omitted that he
worked as a mechanic at the time of the attacks, that gang
members beat him in 2009, and that he had a brother named
Wilson who also had been threatened by the gang in Guatemala.
The agency was not required to credit Munoz’s explanations
4
for the omissions, as they did not resolve the resulting
inconsistency. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d
Cir. 2005) (“A petitioner must do more than offer a
plausible explanation for his inconsistent statements to
secure relief; he must demonstrate that a reasonable fact-
finder would be compelled to credit his testimony.” (internal
quotation marks omitted)). Although we have cautioned that
omissions may be “less probative” of credibility than
inconsistencies, the agency did not err in relying on these
omissions because Munoz gave inconsistent explanations
regarding the omissions. See Hong Fei Gao, 891 F.3d at 78
(holding that agency may rely on even non-material omissions,
but probative value of omissions is greater where there is
resulting inconsistency). 1
In sum, given the omissions and inconsistencies,
substantial evidence supports the agency’s adverse
1 We do not rely on the agency’s finding that Munoz failed to
testify to a March 2012 encounter with the gang because Munoz
testified to experiencing threats and his application described
this incident as involving only threats. This error does not
require remand given the other bases for the adverse credibility
determination. See Lianping Li v. Lynch, 839 F.3d 144, 149 (2d
Cir. 2016) (explaining that “we may . . . deem remand futile” where
“substantial evidence . . . considered in the aggregate, supports”
the adverse credibility determination (internal quotation marks
omitted)).
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credibility determination. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. The
adverse credibility determination is dispositive of asylum,
withholding of removal, and CAT relief because all three forms
of relief were based on the same factual predicate. See Paul
v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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