Torres-Iraheta v. Lynch ( 2016 )

15-2216
Torres-Iraheta v. Lynch
BIA
Videla, IJ
A205 841 858
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
17th day of November, two thousand sixteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
ROBERT D. SACK,
PETER W. HALL,
Circuit Judges.
_____________________________________
WALTER ALBERTO TORRES-IRAHETA,
Petitioner,
v. 15-2216
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Anne Pilsbury, Central American
Legal Assistance, Brooklyn, N.Y.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Anthony
P. Nicastro, Acting Assistant
Director; Tracey N. McDonald, Trial
Attorney, Office of Immigration
Litigation, United States
Department of Justice, Washington,
D.C.
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 Walter Alberto Torres-Iraheta, a native and
citizen of El Salvador, seeks review of a June 17, 2015, decision
of the BIA affirming a December 30, 2014, decision of an
Immigration Judge (“IJ”) denying Torres-Iraheta’s application
for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Torres-Iraheta, No.
A205 841 858 (B.I.A. June 17, 2015), aff’g No. A205 841 858
(Immig. Ct. N.Y. City Dec. 30, 2014). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
We have reviewed the IJ’s and the BIA’s decisions. See Xiu
Xia Lin v. Mukasey, 534 F.3d 162, 166 (2d Cir. 2008). The
standards of review are well established. 8 U.S.C.
§ 1252(b)(4)(B); see Xiu Xia Lin, 534 F.3d at 165-66.
For asylum applications like Torres-Iraheta’s, governed by
the REAL ID Act, the agency may, “[c]onsidering the totality
of the circumstances,” base a credibility finding on
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inconsistencies and omissions in an asylum applicant’s
statements and evidence. 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu
Xia Lin, 534 F.3d at 163-64, 166 n. 3. 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, 534 F.3d
at 167.
In the present case, substantial evidence supports the
agency’s adverse credibility determination, which is
dispositive of asylum and withholding of removal. Paul v.
Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). The agency
reasonably relied on Torres-Iraheta’s inconsistent testimony
about the time period when he was threatened; his inability to
recall the amount of money demanded by the gang; and his initial
omission of an arrest for sexual assault in his asylum
application. 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534
F.3d at 166 n.3 (inconsistencies and omissions are
“functionally equivalent” for credibility purposes). The
agency was not required to credit Torres-Iraheta’s explanations
that he could not remember when the gang started threatening
him or how much they asked for, as these are two of the central
aspects of his extortion-based claim. His claim that he forgot
about his prior arrest is also not compelling, given the serious
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nature of the charges and the fact that he was detained for three
days. 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)).
Torres-Iraheta’s argument that the agency failed to
consider the whole record also lacks merit. There is no
indication that the agency overlooked record evidence rather
than finding the evidence insufficient to rehabilitate
Torres-Iraheta’s inconsistent testimony. Xiao Ji Chen v. U.S.
Dep’t of Justice, 471 F.3d 315, 336 n.17 (2d Cir. 2006) (“[W]e
presume that an IJ has taken into account all of the evidence
before him, unless the record compellingly suggests
otherwise.”); Wei Guang Wang v. Bd. of Immigration Appeals, 437
F.3d 270, 275 (2d Cir. 2006) (holding that the agency need not
“expressly parse or refute on the record each individual
argument or piece of evidence offered by the petitioner.”
(internal quotation marks omitted)). Torres-Iraheta’s
argument that the BIA engaged in impermissible fact finding also
lacks merit. The BIA did not make any factual findings
inconsistent with the IJ’s, but concluded that the evidence
Torres-Iraheta pointed to did not undermine the IJ’s factual
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findings. See 8 C.F.R. § 1003.1(d)(3)(i) (providing that BIA
reviews IJ’s findings of fact for clear error).
Considering the totality of the circumstances, we cannot
say that a reasonable fact finder would be compelled to find
Torres-Iraheta’s claim credible given the inconsistencies and
omissions relating to important aspects of his claim. Xiu Xia
Lin, 534 F.3d at 167.
Because credibility is dispositive, we do not reach the
agency’s alternate holding that Torres-Iraheta failed to
establish that he was harmed on account of a protected ground.
INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule
courts and agencies are not required to make findings on issues
the decision of which is unnecessary to the results they
reach.”).
Finally, we note that Torres-Iraheta’s CAT claim was based
solely on his fear that he would be imprisoned with gang members
and tortured by them while awaiting trial on murder charges.
Torres-Iraheta has now been released from prison, and the
charges against him have been dismissed. He did not identify
any other reason that he would be imprisoned in El Salvador.
We therefore dismiss his CAT claim as moot. Cnty. of Los
Angeles v. Davis, 440 U.S. 625, 631 (1982). To the extent
Torres-Iraheta raises new grounds for relief based on events
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that postdate the BIA’s decision, he must bring those claims
before the agency in the first instance.
For the foregoing reasons, the petition for review is
DENIED, and the pending motion for a stay of removal is DISMISSED
as moot.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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