Filed: Oct. 08, 2020
Latest Update: Oct. 08, 2020
Summary: 17-4110 Banegas-Suquilanda v. Barr BIA Segal, IJ A206 505 952 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 (WI
Summary: 17-4110 Banegas-Suquilanda v. Barr BIA Segal, IJ A206 505 952 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 (WIT..
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17-4110
Banegas-Suquilanda v. Barr
BIA
Segal, IJ
A206 505 952
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 8th day of October, two thousand twenty.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 GERARD E. LYNCH,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 BLANCA YOLANDA BANEGAS-
14 SUQUILANDA,
15 Petitioner,
16
17 v. 17-4110
18 NAC
19 WILLIAM P. BARR, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Manuel D. Gomez, Esq., New York,
25 NY.
26
27 FOR RESPONDENT: Neelam Ihsanullah, Trial Attorney;
28 Anthony C. Payne, Assistant
1 Director; Joseph H. Hunt,
2 Assistant Attorney General, Office
3 of 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 Blanca Yolanda Banegas-Suquilanda, a native
11 and citizen of Ecuador, seeks review of a BIA decision
12 affirming a decision of an Immigration Judge (“IJ”) denying
13 Banegas-Suquilanda’s application for asylum, withholding of
14 removal, and relief under the Convention Against Torture
15 (“CAT”). In re Banegas-Suquilanda, No. A 206 505 952 (B.I.A.
16 Nov. 30, 2017), aff’g No. A 206 505 952 (Immig. Ct. N.Y.
17 City Mar. 8, 2017). We assume the parties’ familiarity with
18 the underlying facts and procedural history in this case.
19 We have reviewed the IJ’s decision as modified and
20 supplemented by the BIA. See Xue Hong Yang v. U.S. Dep’t of
21 Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v.
22 Gonzales,
417 F.3d 268, 271 (2d Cir. 2005). The standards
23 of review are well established. See 8 U.S.C.
24 § 1252(b)(4)(B); Hong Fei Gao v. Sessions,
891 F.3d 67, 76
2
1 (2d Cir. 2018). The agency may, “[c]onsidering the totality
2 of the circumstances . . . base a credibility determination
3 on . . . the consistency between the applicant’s or witness’s
4 written and oral statements . . . , the internal consistency
5 of each such statement, the consistency of such statements
6 with other evidence of record . . . , and any inaccuracies or
7 falsehoods in such statements, without regard to whether an
8 inconsistency, inaccuracy, or falsehood goes to the heart of
9 the applicant’s claim, or any other relevant factor.” 8
10 U.S.C. § 1158(b)(1)(B)(iii). We conclude that the agency’s
11 adverse credibility determination here is supported by
12 substantial evidence.
13 As an initial matter, Banegas-Suquilanda argues that the
14 BIA applied the wrong standard of review to the IJ’s decision.
15 She is incorrect: the BIA properly reviewed the IJ’s adverse
16 credibility determination for clear error. See 8 C.F.R.
17 § 1003.1(d)(3)(i) (directing that the BIA shall review the
18 IJ’s factual findings “including findings as to the
19 credibility of testimony” for clear error). The BIA properly
20 considered whether the discrepancies and omissions identified
21 by the IJ provided a sufficient basis to conclude that she
3
1 was not credible, and whether Banegas-Suquilanda provided a
2 convincing explanation for them. See In re S-A-, 22 I. & N.
3 Dec. 1328, 1331 (BIA 2000) (the BIA generally defers to an
4 IJ’s adverse credibility determination where “(1) the
5 discrepancies and omissions described by the [IJ] are
6 actually present in the record; (2) such discrepancies and
7 omissions provide specific and cogent reasons to conclude
8 that the alien provided incredible testimony; and (3) the
9 alien has failed to provide a convincing explanation for the
10 discrepancies and omissions”).
11 The agency reasonably relied on inconsistencies in the
12 record related to Banegas-Suquilanda’s final encounter with
13 her alleged abuser, Gustavo Molina. See 8 U.S.C.
14 § 1158(b)(1)(B)(iii). Banegas-Suquilanda testified that the
15 last contact Molina had with her or her family “was in 2013
16 in Guayaquil.” CAR at 134. But she also testified, and
17 claimed in her written statement, that Molina came to her
18 mother’s home and threatened her with death after she left
19 Guayaquil. When asked to explain why she had not mentioned
20 the incident at her mother’s home earlier in her testimony,
21 she presented a third account, claiming that she merely “saw
4
1 that he was there around the house” but “didn’t speak to him
2 so much” or “have real contact with him.” CAR at 138.
3 Banegas-Suquilanda’s testimony and written statement were
4 also inconsistent as to whether her mother was present during
5 this incident. The agency was not required to credit Banegas-
6 Suquilanda’s explanation that her written statement was
7 mistaken. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.
8 2005) (“A petitioner must do more than offer a plausible
9 explanation for his inconsistent statements to secure relief;
10 he must demonstrate that a reasonable fact-finder would be
11 compelled to credit his testimony.” (internal quotation marks
12 omitted)). 1
13 Contrary to Banegas-Suquilanda’s argument on appeal, the
14 agency also reasonably relied on two omissions from her
15 written statement. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu
16 Xia Lin v. Mukasey,
534 F.3d 162, 164, 167 (2d Cir. 2008).
1 Banegas-Suquilanda argues that the agency erred in relying
on an inconsistency related to whether Molina learned that
she had returned to her mother’s house after she left
Guayaquil. But the BIA did not rely on this inconsistency,
and it is therefore not part of the decision under review.
See Xue Hong Yang, 426 F.3d at 522 (when the BIA affirms the
IJ’s decision in some respects but not others, we review the
IJ’s decision as modified by the BIA).
5
1 To begin, Banegas-Suquilanda wrote that Molina only said that
2 he would kill her and that he attacked her by “hitting her”
3 in Guayaquil. 2 CAR at 2, 160. She testified, however, that he
4 also “tried to kill” and “tried to strangle” her during that
5 incident. CAR at 100. We have recently cautioned against
6 placing undue weight on “omissions that arise merely because
7 an applicant’s oral testimony is more detailed than his or
8 her written application.” Hong Fei Gao, 891 F.3d at 82.
9 However, the agency here reasonably concluded that the
10 omitted elements of her account significantly changed the
11 character of an event central to Banegas-Suquilanda’s claim.
12 See Hong Fei
Gao, 891 F.3d at 78 (distinguishing between
13 “belatedly recollected facts [that] merely augment” a prior
14 statement and “facts . . . that a credible petitioner would
15 reasonably have been expected to disclose”).
16 Further, Banegas-Suquilanda wrote that Molina came to
17 her place of work on three occasions, and that, after one of
18 these incidents, two managers intervened to protect her and
19 hid her in an apartment. In her testimony, she added that
2 In this Court, Banegas-Suquilanda incorrectly asserts that
her statement “did not specify the way in which [Molina]
attacked her.” Petitioner’s Br. at 18.
6
1 her employers called the police on one of these occasions.
2 In light of her discussion of the other actions her managers
3 took on her behalf, their contact with the police is a fact
4 that Banegas-Suquilanda would reasonably be expected to
5 include in her statement. See Hong Fei Gao, 891 F.3d at 78–
6 79 (“[I]n assessing the probative value of the omission of
7 certain facts, an IJ should consider whether those facts are
8 ones that a credible petitioner would reasonably have been
9 expected to disclose under the relevant circumstances.”). Its
10 omission diminishes her statement’s credibility.
11 Finally, the agency did not err in relying on the fact
12 that the letter from Banegas-Suquilanda’s mother failed to
13 mention significant events that the mother purportedly
14 witnessed, and also that it stated that Banegas-Suquilanda’s
15 relationship with Molina began in 2010, while Banegas-
16 Suquilanda asserted she first met Molina in 2011. See
17 8 U.S.C. § 1158(b)(1)(B)(iii). The IJ recognized that the
18 inconsistency as to the dates alone would not compel the
19 conclusion that Banegas-Suquilanda was not credible, but she
20 reasonably found this inconsistency troubling in light of
21 other inconsistencies in the record. See Diallo v. INS, 232
7
1 F.3d 279, 288 (2d Cir. 2000) (recognizing that minor
2 discrepancies in dates need not be fatal to an applicant’s
3 credibility); see also Xiu Xia
Lin, 534 F.3d at 167 (“[A]n IJ
4 may rely on any inconsistency or omission in making an adverse
5 credibility determination as long as the ‘totality of the
6 circumstances’ establishes that an asylum applicant is not
7 credible.” (quoting 8 U.S.C. § 1158(b)(1)(B)(iii))). The IJ
8 reasonably concluded that the beatings that the mother
9 purportedly witnessed and her attempts to intervene were
10 specifics that the mother would be expected to include in her
11 letter, and that Banegas-Suquilanda did not offer a
12 persuasive explanation for their omission.
13 Although an applicant’s failure to explain a third-
14 party’s omission is “less probative of credibility than an
15 applicant’s failure to explain his or her own omissions,” the
16 agency was entitled to consider the mother’s omissions in the
17 totality of the circumstances, particularly since the letter
18 was prepared and submitted in support of the asylum
19 application and the record lacked any other corroboration of
20 the alleged abuse. Hong Fei
Gao, 891 F.3d at 81; see Biao
21 Yang v. Gonzales,
496 F.3d 268, 273 (2d Cir. 2007) (holding
8
1 that asylum “applicant’s failure to corroborate . . . her
2 testimony may bear on credibility, because the absence of
3 corroboration in general makes an applicant unable to
4 rehabilitate testimony that has already been called into
5 question”).
6 In light of these significant inconsistencies and
7 omissions and the lack of reliable corroboration, we conclude
8 that the agency’s adverse credibility determination is
9 supported by substantial evidence. See 8 U.S.C.
10 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 165–67.
11 Because all three rest on the same factual predicate
12 determination, our determination is dispositive of
13 Petitioner’s claims for asylum, withholding of removal, and
14 CAT relief. See Paul v. Gonzales,
444 F.3d 148, 156–57 (2d
15 Cir. 2006).
16 For the foregoing reasons, the petition for review is
17 DENIED. All pending motions and applications are DENIED and
18 stays VACATED.
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe,
21 Clerk of Court
9
