Filed: Jul. 08, 2011
Latest Update: Feb. 22, 2020
Summary: 10-684-ag Carranza v. Holder BIA Hom, IJ A094 095 153 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 N
Summary: 10-684-ag Carranza v. Holder BIA Hom, IJ A094 095 153 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 NO..
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10-684-ag
Carranza v. Holder
BIA
Hom, IJ
A094 095 153
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 8th day of July, two thousand eleven.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 GERARD E. LYNCH,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _______________________________________
12
13 CORNELIO CARRANZA,
14
15 Petitioner,
16
17 v. 10-684-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21
22 Respondent.
23 ______________________________________
24
25 FOR PETITIONER: Andrew P. Johnson, New York, NY.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Shelley R. Goad, Assistant
29 Director; Jennifer A. Singer, Trial
30 Attorney, Office of Immigration
31 Litigation, Civil Division, U.S.
32 Department of Justice, Washington,
33 D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DISMISSED in part and DENIED in part.
5 Petitioner Cornelio Carranza, a native and citizen of
6 El Salvador, seeks review of a January 29, 2010, decision of
7 the BIA affirming the May 10, 2007, decision of Immigration
8 Judge (“IJ”) Sandy Hom, which (1) pretermitted his
9 application for asylum, (2) denied his applications for
10 withholding of removal and relief under the Convention
11 Against Torture (“CAT”), and (3) denied his request for
12 special rule cancellation of removal pursuant to the
13 Nicaraguan Adjustment and Central American Relief Act of
14 1997 (“NACARA”). In re Cornelio Carranza, No. A094 095 153
15 (B.I.A. Jan. 29, 2010), aff’g No. A094 095 153 (Immig. Ct.
16 N.Y. City May 10, 2007). We assume the parties’ familiarity
17 with the underlying facts and procedural history of the
18 case.
19 We have reviewed the decision of the IJ as supplemented
20 by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
21 Cir. 2005). Under the circumstances of this case, “the
22 administrative findings of fact are conclusive unless any
23 reasonable adjudicator would be compelled to conclude to the
2
1 contrary.” 8 U.S.C. § 1252(b)(4)(B). “The substantial
2 evidence standard of review applies, and we uphold the IJ’s
3 factual findings if they are supported by reasonable,
4 substantial[,] and probative evidence in the record.”
5 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009)
6 (internal quotation marks and citations omitted).
7 I. Adverse Credibility Determination
8 In finding Carranza not credible, the IJ reasonably
9 relied on inconsistencies in his testimony regarding his
10 killing of a farmer while serving in the Salvadoran
11 military. See Secaida-Rosales v. INS,
331 F.3d 297, 308-09
12 (2d Cir. 2003), superseded by statute on other grounds as
13 recognized in Xiu Xia Lin v. Mukasey,
534 F.3d 162, 167 (2d
14 Cir. 2008). As the IJ found, in contrast to his testimony
15 that he was ordered only to follow the farmer but killed the
16 farmer in self-defense when the farmer attacked him,
17 Carranza’s later testimony and his asylum application
18 indicated that he carried out an order to kill the farmer.
19 Carranza does not challenge this finding, and it stands as a
20 valid basis for the IJ’s adverse credibility determination.
21 See Shunfu Li v. Mukasey,
529 F.3d 141, 146-47 (2d Cir.
22 2008); see also 8 U.S.C. § 1158(b)(1)(B)(iii).
3
1 The IJ also reasonably relied on omissions in
2 Carranza’s asylum application in denying his claim.
3 Although Carranza explained that he “didn’t go into detail”
4 in his application, the IJ was entitled to disregard this
5 explanation, as it would not necessarily be compelling to a
6 reasonable factfinder. See Majidi v. Gonzales, 430 F.3d 77,
7 80-81 (2d Cir. 2005). Despite Carranza’s claim that the
8 omission was merely “collateral” to his underlying claim for
9 relief, the IJ’s reliance on these omissions was reasonable
10 because, as the IJ noted, the facts that the man Carranza
11 killed was allegedly armed and attacked him first were
12 especially salient omissions, in light of Carranza’s
13 contention that he killed the man in self-defense. See
14
Secaida-Rosales, 331 F.3d at 308-09.
15 Given the IJ’s findings, substantial evidence supports
16 his adverse credibility determination, and the agency
17 properly denied Carranza’s applications for withholding of
18 removal and CAT relief because the only evidence that
19 Carranza would be persecuted or tortured depended on his
20 credibility. See id.; Paul v. Gonzales,
444 F.3d 148, 156
21 (2d Cir. 2006). Accordingly, we need not reach Carranza’s
22 arguments that he established past persecution or a
23 likelihood of future persecution. See Liang Chen v. U.S.
4
1 Att’y Gen., 454 F.3d 103, 106-107 (2d Cir. 2006).
2 II. NACARA Relief
3 Under Section 1252(a)(2)(B)(i) of Title 8 of the United
4 States Code, we lack jurisdiction to review the agency’s
5 denial of relief under 8 U.S.C. § 1229b, the cancellation-
6 of-removal statute. See Barco-Sandoval v. Gonzales, 516
7 F.3d 35, 38-39 (2d Cir. 2008) (upholding De La Vega v.
8 Gonzales,
436 F.3d 141 (2d Cir. 2006)). Special rule
9 cancellation of removal under NACARA is subject to the
10 jurisdiction-stripping provision of 8 U.S.C.
11 § 1252(a)(2)(B)(i) as well. See NACARA § 203(a)(1), Pub. L.
12 105-100, 111 Stat. at 2197-98. Nonetheless, we retain
13 jurisdiction to review “constitutional claims or questions
14 of law raised upon a petition for review.” 8 U.S.C.
15 § 1252(a)(2)(D); see also Xiao Ji Chen v. U.S. Dep’t of
16 Justice,
471 F.3d 315, 325 (2d Cir. 2006).
17 Here, the agency found Carranza ineligible for NACARA
18 relief because he: (1) did not establish the required seven
19 years of continuous physical presence in the United States
20 given his testimony which was both internally inconsistent
21 and inconsistent with testimony offered by his son;
22 (2) failed to establish the requisite “extreme hardship” to
5
1 either himself or a qualifying relative; and (3) failed to
2 meet the threshold eligibility requirements under 8 C.F.R.
3 § 1240.61.
4 Carranza challenges only the IJ’s factual findings
5 regarding the dates of his departure and reentry into the
6 United States, and the IJ’s failure to afford sufficient
7 weight to evidence establishing the requisite continuous
8 physical presence in the United States. Because these
9 arguments do not present a constitutional claim or question
10 of law, we lack jurisdiction to review them. See Xiao Ji
11 Chen, 471 F.3d at 326-29. Accordingly, we dismiss
12 Carranza’s petition with regard to his challenge to the
13 agency’s denial of NACARA relief.
14 For the foregoing reasons, the petition for review is
15 DENIED in part and DISMISSED in part. As we have completed
16 our review, any stay of removal that the Court previously
17 granted in this petition is VACATED, and any pending motion
18 for a stay of removal in this petition is DISMISSED as moot.
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
22
6
