Kquerare Salcedo v. Garland ( 2021 )

19-864
Kquerare Salcedo v. Garland
BIA
Ruehle, IJ
A206 437 713
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 4th day of May, two thousand twenty-one.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 BARRINGTON D. PARKER,
9 JOSEPH F. BIANCO,
10 Circuit Judges.
11 _____________________________________
12
13 JAVIER SANTOS KQUERARE SALCEDO,
14 Petitioner,
15
16 v. 19-864
17 NAC
18 MERRICK B GARLAND, UNITED STATES
19 ATTORNEY GENERAL,*
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Jose Perez, Esq., Syracuse, NY.
24
25 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
26 General; Russell J. E. Verby,
27 Senior Litigation Counsel; Kristin
* The Clerk of the Court is respectfully directed to amend the caption as set forth.
1 Moresi, Trial Attorney, Office of
2 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 Javier Santos Kquerare Salcedo, a native and
10 citizen of Peru, seeks review of a March 5, 2019, decision of
11 the BIA affirming a December 6, 2017, decision of an
12 Immigration Judge (“IJ”) denying Salcedo’s application for
13 asylum, withholding of removal, and relief under the
14 Convention Against Torture (“CAT”). In re Javier Santos
15 Kquerare Salcedo, No. A 206 437 713 (B.I.A. Mar. 5, 2019),
16 aff’g No. A 206 437 713 (Immig. Ct. Buffalo Dec. 6, 2017). We
17 assume the parties’ familiarity with the underlying facts and
18 procedural history.
19 We have reviewed the decisions of both the IJ and the
20 BIA. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d
21 Cir. 2005). Salcedo does not challenge the agency’s denial
22 of asylum as time barred, so we address only the adverse
23 credibility that formed the basis for the denial of
2
1 withholding of removal and CAT relief. The applicable
2 standards of review are well established. See 8 U.S.C.
3 § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76
4 (2d Cir. 2018) (reviewing adverse credibility determination
5 under substantial evidence standard). “Considering the
6 totality of the circumstances, and all relevant factors, a
7 trier of fact may base a credibility determination on the
8 demeanor, candor, or responsiveness of the applicant or
9 witness, . . . the consistency between the applicant’s . . .
10 written and oral statements . . . , the internal consistency
11 of each statement, the consistency of such statements with
12 other evidence of record . . . and any inaccuracies or
13 falsehoods in such statements, without regard to whether an
14 inconsistency, inaccuracy, or falsehood goes to the heart of
15 the applicant’s claim, or any other relevant factor.” 8
16 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
17 credibility determination unless, from the totality of the
18 circumstances, it is plain that no reasonable fact-finder
19 could make such an adverse credibility ruling.” Xiu Xia Lin
20 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei
21 Gao, 891 F.3d at 76. Substantial evidence supports the
3
1 agency’s adverse credibility determination.
2 Salcedo alleged that he was sexually assaulted in 2000
3 and subsequently physically assaulted in the street because
4 he was gay or bisexual. The agency reasonably relied on
5 inconsistencies in his accounts of the physical assault and
6 his fear of his relatives who were police officers. See 8
7 U.S.C. § 1158(b)(1)(B)(iii). Salcedo’s asylum application
8 listed the physical assault as occurring in 2004, but he
9 testified it was in 2008 or 2009, and then changed his
10 testimony back to 2004 when confronted with the
11 inconsistency. And he initially alleged that he had multiple
12 relatives who were police officers, but when pressed said
13 only his great uncle Julian was a police officer. His
14 sister’s testimony added further inconsistency because she
15 testified that their uncle Leonardo was the only police
16 officer in the family. Salcedo also testified inconsistently
17 regarding his sexual history while in the United States, and
18 his medical records conflicted with his testimony that he had
19 attempted suicide because he feared returning to Peru. Taken
20 together, these inconsistencies provide substantial support
21 for the adverse credibility determination. See Xiu Xua Lin,
4
1 534 F.3d at 167 (holding that agency may rely on “collateral
2 or ancillary” inconsistencies where “cumulative effect” calls
3 credibility into question (internal quotation marks
4 omitted)).
5 Because Salcedo’s testimony was in question, the agency
6 reasonably relied on his failure to rehabilitate his
7 testimony with any reliable corroborating evidence. See Biao
8 Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An
9 applicant’s failure to corroborate his or her testimony may
10 bear on credibility, because the absence of corroboration in
11 general makes an applicant unable to rehabilitate testimony
12 that has already been called into question.”). As noted
13 above, Salcedo’s sister’s testimony and medical records
14 conflicted with his own statements. See Y.C. v. Holder, 741
15 F.3d 324, 332, 334 (2d Cir. 2013) (“We generally defer to the
16 agency’s evaluation of the weight to be afforded an
17 applicant’s documentary evidence.”).
18 Given the inconsistencies and lack of reliable
19 corroboration, substantial evidence supports the agency’s
20 adverse credibility determination. See 8 U.S.C.
21 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. That
5
1 determination is dispositive of withholding of removal and
2 CAT relief because both claims were based on the same factual
3 predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d
4 Cir. 2006).
5 For the foregoing reasons, the petition for review is
6 DENIED. All pending motions and applications are DENIED and
7 stays VACATED.
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe,
10 Clerk of Court
6