Hernandez v. Sessions ( 2017 )

16-330
Hernandez v. Sessions
BIA
Wright, IJ
A200 236 433
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 7th day of March, two thousand seventeen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 RICHARD C. WESLEY,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 MARIA SUYAPA HERNANDEZ,
14 Petitioner,
15
16 v. 16-330
17 NAC
18 JEFFERSON B. SESSIONS, III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.*
21 _____________________________________
22
23 FOR PETITIONER: Bruno Joseph Bembi, Hempstead, NY.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Mary
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
General Jefferson B. Sessions, III, is automatically substituted for
former Attorney General Loretta E. Lynch as Respondent.
1 Jane Candaux, Assistant Director;
2 Aimee J. Carmichael, Trial Attorney,
3 Office of Immigration Litigation,
4 United States Department of Justice,
5 Washington, DC.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review is
10 DENIED.
11 Petitioner Maria Suyapa Hernandez, a native and citizen of
12 Honduras, seeks review of a January 11, 2016, decision of the
13 BIA, affirming a December 16, 2014, decision of an Immigration
14 Judge (“IJ”) denying asylum, withholding of removal, and relief
15 under the Convention Against Torture (“CAT”). In re Maria
16 Suyapa Hernandez, No. A200 236 433 (B.I.A. Jan. 11, 2016), aff’g
17 No. A200 236 433 (Immig. Ct. N.Y.C. Dec. 16, 2014). We assume
18 the parties’ familiarity with the underlying facts and
19 procedural history in this case.
20 Under the circumstances of this case, we have reviewed the
21 IJ’s decision as modified by the BIA, that is, minus the bases
22 for denying relief that were not considered by the BIA. Yang
23 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
24 Accordingly, we do not address the IJ’s conclusion that
25 Hernandez’s asylum application was untimely, which the BIA did
2
1 not rely on. Id. The applicable standards of review are well
2 established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
3 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
4 Considering the totality of the
5 circumstances, and all relevant factors, a
6 trier of fact may base a credibility
7 determination on . . . the inherent
8 plausibility of the applicant’s . . .
9 account, the consistency between the
10 applicant’s . . . written and oral statements
11 . . . , the internal consistency of each such
12 statement, [and] the consistency of such
13 statements with other evidence of record .
14 . . without regard to whether an
15 inconsistency, inaccuracy, or falsehood
16 goes to the heart of the applicant’s claim,
17 or any other relevant factor.
18
19 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.
20 Substantial evidence supports the agency’s determination that
21 Hernandez was not credible as to her claim that her former
22 partner threatened to kill her and abused her daughter.
23 The agency reasonably relied on Hernandez’s inconsistent
24 statements regarding her partner’s threat to kill her. See
25 8 U.S.C. § 1158(b)(1)(B)(iii). In her written statement,
26 Hernandez claimed that her partner threatened to kill her when
27 she accused him of molesting her daughter, but she testified
28 inconsistently that she never confronted him about the abuse.
29 Furthermore, when asked to explain why her partner threatened
30 to kill her (if not a result of a confrontation about the alleged
3
1 abuse), Hernandez could not say what they were arguing about,
2 but rather avoided answering the question.
3 The agency also reasonably relied on Hernandez’s omission
4 from her written statement of her claims that her partner
5 threatened to behead her and raped her multiple times. See
6 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d
7 at 166-67 & n.3 (“An inconsistency and an omission are . . .
8 functionally equivalent.”). The agency also did not err in
9 finding Hernandez’s testimony inconsistent with her border
10 interview. She testified that she told U.S. immigration
11 officials at the border that she was afraid to return to
12 Honduras, but the record of that sworn statement, which bore
13 the hallmarks of reliability, reflected that she stated she had
14 no fear of returning to Honduras. See 8 U.S.C.
15 § 1158(b)(1)(B)(iii); Zhang v. Holder, 585 F.3d 715, 721-22 (2d
16 Cir. 2009) (recognizing that interview record “bears hallmarks
17 of accuracy and reliability” when it contains “a verbatim
18 account or transcript[,] . . . was conducted in a manner designed
19 to elicit the details of an asylum claim[,] . . . and . . .
20 contains no indication that the alien was reluctant to reveal
21 information or did not understand” (internal quotation marks
22 and citations omitted)). Hernandez did not compellingly
4
1 explain any of the record inconsistencies. See Majidi v.
2 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005).
3 Having questioned Hernandez’s credibility, the IJ
4 reasonably relied further on Hernandez’s failure to
5 rehabilitate her testimony with any evidence corroborating her
6 claim. “An applicant’s failure to corroborate his or her
7 testimony may bear on credibility, because the absence of
8 corroboration in general makes an applicant unable to
9 rehabilitate testimony that has already been called into
10 question.” Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.
11 2007). The agency was not compelled to credit Hernandez’s
12 explanation that her daughter who lives in the United States
13 could not testify because she is also in removal proceedings,
14 particularly as the explanation did not account for the absence
15 of a written statement. Cf. Yan Juan Chen v. Holder, 658 F.3d
16 246, 253 (2d Cir. 2011) (holding that a reasonable fact finder
17 is not compelled to conclude that a spouse is unavailable to
18 testify based on fear of arrest due to unlawful status).
19 Moreover, the IJ was not required to give Hernandez additional
20 time to obtain corroborating statements or to explain why the
21 missing evidence was not reasonably available. See Liu v.
5
1 Holder, 575 F.3d 193, 196-97 (2d Cir. 2009); Diallo v. Gonzales,
2 445 F.3d 624, 633-34 (2d Cir. 2006).
3 Given the inconsistency and lack of corroboration
4 findings, the agency’s adverse credibility determination is
5 supported by substantial evidence. 8 U.S.C.
6 § 1158(b)(1)(B)(iii). That determination is dispositive of
7 asylum, withholding of removal, and CAT relief because all three
8 claims are based on the same factual predicate. See Paul v.
9 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
10 There is no merit to Hernandez’s argument that the BIA
11 should have found the Government in default and ruled in her
12 favor based on the Government’s decision not to file a brief
13 on appeal to the BIA. The Government was permitted to file a
14 response brief to Hernandez’s brief on appeal, but it was not
15 required to do so. See BIA Practice Manual § 4.6(f) (“When the
16 appealing party files an appeal brief, the other party may file
17 a ‘response brief.’”).
18 For the foregoing reasons, the petition for review is
19 DENIED. As we have completed our review, any stay of removal
20 that the Court previously granted in this petition is VACATED,
21 and any pending motion for a stay of removal in this petition
22 is DISMISSED as moot. Any pending request for oral argument
6
1 in this petition is DENIED in accordance with Federal Rule of
2 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
3 34.1(b).
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
7