Marmolejo Silva v. Garland ( 2023 )

21-6126
Marmolejo Silva v. Garland
BIA
Ruehle, IJ
A205 152 875
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 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 17th day of August, two thousand twenty-
5 three.
6
7 PRESENT:
8 RICHARD C. WESLEY,
9 RICHARD J. SULLIVAN,
10 MYRNA PÉREZ,
11 Circuit Judges.
12 _____________________________________
13
14 FRANCISCO MARMOLEJO SILVA,
15 Petitioner,
16
17 v. 21-6126
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Matthew L. Kolken, Kolken &
25 Kolken, Buffalo, NY.
26
27 FOR RESPONDENT: Brian Boynton, Acting Assistant
28 Attorney General; Anna Juarez,
1 Senior Litigation Counsel; Kathryn
2 M. McKinney, Attorney, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington, DC.
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Francisco Marmolejo Silva, a native and
11 citizen of Mexico, seeks review of a February 8, 2021 decision
12 of the BIA affirming a May 22, 2018 decision of an Immigration
13 Judge (“IJ”), which denied his application for asylum,
14 withholding of removal, and relief under the Convention
15 Against Torture (“CAT”). In re Francisco Marmolejo Silva,
16 No. A 205 152 875 (B.I.A. Feb. 8, 2021), aff’g No. A 205 152
17 875 (Immig. Ct. Buffalo May 22, 2018). We assume the parties’
18 familiarity with the underlying facts and procedural history.
19 In lieu of filing a brief, the Government moves for
20 summary denial of Marmolejo Siva’s petition for review.
21 Summary denial is a “rare exception to the completion of the
22 appeal process” and “is available only if an appeal is truly
23 frivolous.” United States v. Davis, 598 F.3d 10, 13 (2d Cir.
24 2010) (internal quotation marks omitted). A claim is
2
1 frivolous if it based on an “inarguable legal conclusion” or
2 “fanciful factual allegation.” Pillay v. I.N.S., 45 F.3d 14,
3 16 (2d Cir. 1995) (quoting Neitzke v. Williams, 490 U.S. 319,
4 325 (1989)). That said, Marmolejo Silva has filed his brief,
5 so rather than determining whether the petition meets the
6 standard for frivolousness, we construe the Government’s
7 motion for summary denial as its brief and deny the petition
8 on its merits.
9 Marmolejo Silva argues that the agency erred in denying
10 his application for asylum as untimely. He also argues that
11 the agency erred in denying asylum, withholding of removal,
12 and CAT relief based on an adverse credibility determination
13 and lack of corroboration. Marmolejo Silva alleges that he
14 was threatened, and other family members were killed or
15 disappeared, because he helped extradite a cartel member who
16 had killed his brother in 2008.
17 I. Asylum
18 An applicant is barred from asylum absent “clear and
19 convincing evidence that the application has been filed
20 within 1 year after the date of . . . arrival in the United
21 States” or, as relevant here, within a reasonable time of
3
1 “changed circumstances which materially affect the
2 applicant’s eligibility for asylum.” 8 U.S.C.
3 § 1158(a)(2)(B), (D). Our jurisdiction to review the denial
4 of an asylum claim as untimely, including the changed-
5 circumstances analysis, is limited to constitutional claims
6 and questions of law. Id. § 1158(a)(3); Barco-Sandoval v.
7 Gonzales, 516 F.3d 35, 40–41 (2d Cir. 2007) (claim must be
8 “colorable” to involve this Court’s jurisdiction).
9 Here, we do not have jurisdiction over Marmolejo Silva’s
10 challenge to the agency’s denial of asylum as time-barred.
11 Marmolejo Silva asserts that the IJ failed to consider 2016
12 and 2018 U.S. Department of State Travel Advisories that
13 indicated increasing violence in his home state in Mexico.
14 But this argument does not raise a colorable question of law
15 because the agency is not required to “expressly parse or
16 refute on the record each individual argument or piece of
17 evidence that a petitioner offers.” Quituizaca v. Garland,
18 52 F.4th 103, 115 (2d Cir. 2022) (internal quotation marks
19 omitted). The Travel Advisories do not “compellingly
20 suggest” that the agency ignored changes in conditions, as
21 the advisories do not describe conditions in Mexico, identify
4
1 changes in conditions, or explain why the travel warnings or
2 restrictions changed from 2016 to 2018. Xiao Ji Chen v. U.S.
3 Dep’t of Just., 471 F.3d 315, 336 n.17 (2d Cir. 2006).
4 II. Withholding of Removal and CAT Relief
5 As to Marmolejo Silva’s claims for withholding of removal
6 and CAT relief, substantial evidence supports the agency’s
7 adverse credibility determination. We review the agency’s
8 adverse credibility determination “under the substantial
9 evidence standard.” Hong Fei Gao v. Sessions, 891 F.3d 67,
10 76 (2d Cir. 2018). “Considering the totality of the
11 circumstances, and all relevant factors, a trier of fact may
12 base a credibility determination on the . . . consistency
13 between the applicant’s . . . written and oral statements
14 (whenever made and whether or not under oath, and considering
15 the circumstances under which the statements were made) . . .
16 without regard to whether an inconsistency, inaccuracy, or
17 falsehood goes to the heart of the applicant’s claim, or any
18 other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We
19 defer . . . to an IJ’s credibility determination unless, from
20 the totality of the circumstances, it is plain that no
21 reasonable fact-finder could make such an adverse credibility
5
1 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
2 2008); accord Hong Fei Gao, 891 F.3d at 76.
3 Here, the IJ reasonably relied on two inconsistencies
4 between Marmolejo Silva’s testimony and written statements
5 about the nature of the threats he received and whether he
6 reported them to the police. See Likai Gao v. Barr, 968 F.3d
7 137, 145 n.8 (2d Cir. 2020) (“[E]ven a single inconsistency
8 might preclude an alien from showing that an IJ was compelled
9 to find him credible. Multiple inconsistencies would so
10 preclude even more forcefully.”). Marmolejo Silva’s written
11 statement asserted that people threatened him over the phone
12 and in person at his work, but he testified that he only
13 received threats by phone. See Certified Admin. Record at
14 209, 241–42, 303. Further, Marmolejo Silva’s written
15 statement asserted that he reported threats to the police and
16 they told him they could not help him, but he testified that
17 he did not call the police to report any threats. Id. at
18 242, 303. The agency was not required to credit his
19 explanation that he reported the threats in person, given
20 that he also explained that he did not call the police because
21 he was afraid—not that he went in person. See Majidi v.
6
1 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
2 do more than offer a plausible explanation for his
3 inconsistent statements to secure relief; he must demonstrate
4 that a reasonable fact-finder would be compelled to credit
5 his testimony.” (internal quotation marks omitted)). 1
6 Moreover, a lack of corroboration resolving these
7 inconsistencies or confirming other aspects of the claim
8 bolsters the adverse credibility determination. “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.” Biao Yang v.
13 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). Here, Marmolejo
14 Silva failed to corroborate his brother’s membership in the
15 National Guard or his own involvement in extraditing his
16 brother’s killer to Mexico.
1 Wedo not rely on the IJ’s finding that Marmolejo Silva omitted
details of his brother’s death from his testimony at the hearing
because he was not questioned regarding those details. See Ming
Shi Xue v. BIA, 439 F.3d 111, 121 (2d Cir. 2006) (“[W]here the
perceived incongruities . . . are not plainly obvious, an IJ cannot
rely on them . . . without first identifying the alleged
inconsistencies for the applicant and giving the applicant an
opportunity to address them.”).
7
1 Together with the aforementioned inconsistencies, this
2 lack of corroboration provides substantial evidence for the
3 adverse credibility determination, and necessitates denial of
4 Marmolejo Silva’s claims for withholding of removal and CAT
5 protection, which relied on the same factual predicates. See
6 Xiu Xia Lin, 534 F.3d at 167; see also Paul v. Gonzales, 444
7 F.3d 148, 156–57 (2d Cir. 2006).
8 For the foregoing reasons, the Government’s motion for
9 summary denial is construed as its brief, and the petition
10 for review is DENIED. All pending motions and applications
11 are DENIED and stays VACATED.
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe,
14 Clerk of Court
15
8