Menendez v. Lynch

15-509
Menendez v. Lynch
BIA
Straus, IJ
A095 668 171
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 15th day of November, two thousand sixteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 DENNY CHIN,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 WILSON MENENDEZ, AKA WILSON
14 MENENDEZ-COLINDRES,
15 Petitioner,
16
17 v. 15-509
18 NAC
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Elyssa N. Williams, Glenn L.
25 Formica, Formica Williams, P.C., New
26 Haven, CT.
27
28 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
29 Assistant Attorney General; Derek C.
30 Julius, Senior Litigation Counsel;
31 Zoe J. Heller, Trial Attorney,
32 Office of Immigration Litigation,
33 United States Department of Justice,
34 Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a Board

2 of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,

3 ADJUDGED, AND DECREED that the petition for review is DENIED.

4 Petitioner Wilson Menendez, a native and citizen of

5 Guatemala, seeks review of a January 20, 2015, decision of the

6 BIA, affirming a September 9, 2013, decision of an Immigration

7 Judge (“IJ”) denying asylum, withholding of removal, and relief

8 under the Convention Against Torture (“CAT”). In re Wilson

9 Menendez, No. A095 668 171 (B.I.A. Jan. 20, 2015), aff’g No.

10 A095 668 171 (Immig. Ct. Hartford Sep. 9, 2013). We assume the

11 parties’ familiarity with the underlying facts and procedural

12 history in this case.

13 Under the circumstances of this case, we review the IJ’s

14 decision as modified by the BIA, and only the credibility and

15 corroboration findings are before us. See Xue Hong Yang v. U.S.

16 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The

17 applicable standards of review are well established. 8 U.S.C.

18 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66

19 (2d Cir. 2008).

20 “The testimony of the applicant may be sufficient to sustain

21 the applicant’s burden . . . if the applicant satisfies the trier

22 of fact that the applicant’s testimony is credible, is

23 persuasive, and refers to specific facts sufficient to

2
1 demonstrate that the applicant is a refugee. . . . Where the

2 trier of fact determines that the applicant should provide

3 evidence that corroborates otherwise credible testimony, such

4 evidence must be provided unless the applicant does not have

5 the evidence and cannot reasonably obtain the evidence.” 8

6 U.S.C. § 1158(b)(1)(B)(ii). The agency may, “[c]onsidering the

7 totality of the circumstances,” base a credibility finding on

8 an asylum applicant’s “demeanor, candor, or responsiveness,”

9 the plausibility of his account, and inconsistencies in his

10 statements and other record evidence “without regard to whether”

11 the inconsistencies go “to the heart of the applicant’s claim.”

12 Id. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. “We

13 defer . . . to an IJ’s credibility determination unless . . .

14 it is plain that no reasonable fact-finder could make such an

15 adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.

16 Further, “[a] petitioner must do more than offer a plausible

17 explanation for his inconsistent statements to secure relief;

18 he must demonstrate that a reasonable fact-finder would be

19 compelled to credit his testimony.” Majidi v. Gonzales, 430

20 F.3d 77, 80 (2d Cir. 2005) (internal quotation marks and

21 citations omitted).

3
1 Substantial evidence supports the agency’s determination

2 that Menendez was not credible and failed to sufficiently

3 corroborate his testimony.

4 First, Menendez gave conflicting statements regarding why

5 various law enforcement agencies believed he was Mexican. See

6 Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (“So a single

7 false document or a single instance of false testimony may (if

8 attributable to the petitioner) infect the balance of the alien’s

9 uncorroborated or unauthenticated evidence.”). At different

10 times, Menendez stated that: the police found his Mexican

11 identification card, authorities did not believe him when he

12 said he was Guatemalan, he could not remember what he said, he

13 mistakenly told authorities he was Mexican, he told authorities

14 that his family lived in Mexico, and he told authorities he was

15 from Mexico because he feared returning to Guatemala. The

16 agency was not compelled to accept his final explanation (that

17 he feared persecution in Guatemala), given the variety of

18 explanations preceding it. See Majidi, 430 F.3d at 80. And,

19 he provided false information not only in his initial flight

20 from Guatemala, but also at other points for the next seven years,

21 including when he was placed in removal proceedings.

22 Second, the agency reasonably relied further on Menendez's

23 failure to provide corroborating evidence. As the Government

4
1 argues, Menendez has waived any challenge to the agency’s

2 corroboration ruling by failing to raise it in his brief. See

3 Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005)

4 (providing that issues not raised in an opening brief are

5 waived). Moreover, the agency reasonably relied on Menendez’s

6 failure to provide a letter or affidavit from his mother who

7 had firsthand knowledge of the events and with whom Menendez

8 was in contact. Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d

9 Cir. 2007).

10 Menendez argues that the IJ improperly relied upon his

11 criminal convictions to support the adverse credibility

12 determination. However, the BIA affirmed the IJ’s adverse

13 credibility determination based solely on Menendez’s

14 conflicting statements regarding his nationality and his lack

15 of corroboration (specifically, the absence of a letter from

16 his mother). Accordingly, the IJ’s reliance on the criminal

17 convictions is no longer part of the decision under review. See

18 Xue Hong Yang, 426 F.3d at 522.

19 Given the inconsistency and corroboration findings, the

20 agency reasonably found Menendez not credible and thus unable

21 to meet his burden of proof. See 8 U.S.C. § 1158(b)(1)(B);

22 Siewe, 480 F.3d at 170; Biao Yang, 496 F.3d at 273. That finding

23 is dispositive of asylum, withholding of removal, and CAT relief

5
1 because all three claims are based on the same factual predicate.

2 See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

3 For the foregoing reasons, the petition for review is

4 DENIED. As we have completed our review, any stay of removal

5 that the Court previously granted in this petition is VACATED,

6 and any pending motion for a stay of removal in this petition

7 is DENIED as moot. Any pending request for oral argument in this

8 petition is DENIED in accordance with Federal Rule of Appellate

9 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk

6