Silverio-Salazar v. Garland ( 2021 )

19-2154
Silverio-Salazar v. Garland
BIA
Straus, IJ
A202 120 609
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 24th day of August, two thousand twenty-
5 one.
6
7 PRESENT:
8 GUIDO CALABRESI,
9 DENNY CHIN,
10 STEVEN J. MENASHI,
11 Circuit Judges.
12 _____________________________________
13
14 ELOY SILVERIO-SALAZAR, AKA ELOY
15 SILVERIO SALAZAR-MALDONADO,
16 Petitioner,
17
18 v. 19-2154
19 NAC
20 MERRICK B. GARLAND, UNITED
21 STATES ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: Gregory Osakwe, Law Offices of
26 Gregory C. Osakwe LLC, Hartford,
27 CT.
28
1 FOR RESPONDENT: Brian Boynton, Acting Assistant
2 Attorney General; Linda S.
3 Wernery, Assistant Director;
4 Gerald M. Alexander, Trial
5 Attorney, Office of Immigration
6 Litigation, United States
7 Department of Justice, Washington,
8 DC.
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Petitioner Eloy Silverio-Salazar, a native and citizen
14 of Ecuador, seeks review of a July 2, 2019, decision of the
15 BIA affirming a February 12, 2018, decision of an Immigration
16 Judge (“IJ”) denying Silverio-Salazar’s application for
17 asylum, withholding of removal, and protection under the
18 Convention Against Torture (“CAT”). In re Eloy Silverio-
19 Salazar, No. A 202 120 609 (B.I.A. July 2, 2019), aff’g No. A
20 202 120 609 (Immig. Ct. Hartford Feb. 12, 2018). We assume
21 the parties’ familiarity with the underlying facts and
22 procedural history.
23 We have reviewed the IJ’s decision as modified by the
24 BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
25 520, 522 (2d Cir. 2005). The applicable standards of review
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). In
3 determining credibility, the agency must “[c]onsider[] the
4 totality of the circumstances” and may base a credibility
5 finding on the “inherent plausibility of the applicant’s . .
6 . account.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . .
7 to an IJ’s credibility determination unless . . . it is plain
8 that no reasonable fact-finder could make such an adverse
9 credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162,
10 163-64, 166–67 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d
11 at 76. We conclude that substantial evidence supports the
12 adverse credibility determination.
13 First, the agency relied on the implausibility of
14 Silverio-Salazar’s testimony that he was the only white
15 person living in Gualaquiza and that the Shuar indigenous
16 people were focused on harming him because of his race. See
17 8 U.S.C. § 1158(b)(1)(B)(iii). The agency reasonably found
18 this testimony implausible because Silverio-Salazar testified
19 that Gualaquiza was a city and his application indicated that
20 his sister also lived there. See Wensheng Yan v. Mukasey,
21 509 F.3d 63, 66–67 (2d Cir. 2007) (IJ may rely on inherently
3
1 implausible testimony so long as finding is “tethered to
2 record evidence”). Moreover, Silverio-Salazar admitted that
3 he had not heard of any other attacks on white people.
4 The agency reasonably relied further on Silverio-
5 Salazar’s failure to rehabilitate his testimony with reliable
6 corroborating evidence. See 8 U.S.C. § 1158(b)(1)(B)(ii)
7 (“Where the trier of fact determines that the applicant should
8 provide evidence that corroborates otherwise credible
9 testimony, such evidence must be provided unless the
10 applicant does not have the evidence and cannot reasonably
11 obtain the evidence.”); Biao Yang v. Gonzales, 496 F.3d 268,
12 273 (2d Cir. 2007) (“An applicant’s failure to corroborate
13 his or her testimony may bear on credibility, because the
14 absence of corroboration in general makes an applicant unable
15 to rehabilitate testimony that has already been called into
16 question.”). Silverio-Salazar provided no letters from
17 friends or family in Ecuador, or from his ex-girlfriend who
18 lived in New York as an asylee and allegedly was at his home
19 when the Shuar burned it down. Moreover, the background
20 materials did not corroborate any racially based attacks by
21 the Shuar against white people.
4
1 Given the implausible testimony and lack of
2 corroboration, the “totality of the circumstances” supports
3 the adverse credibility determination. See Xiu Xia Lin, 534
4 F.3d at 165-67; Biao Yang, 496 F.3d at 273. The adverse
5 credibility determination is dispositive because asylum,
6 withholding of removal, and CAT relief are all based on the
7 same discredited factual predicate. See Paul v. Gonzales,
8 444 F.3d 148, 156-57 (2d Cir. 2006).
9 For the foregoing reasons, the petition for review is
10 DENIED. All pending motions and applications are DENIED and
11 stays VACATED.
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe,
14 Clerk of Court
5