14-1838
    Morales-Espania v. Lynch
                                                                                       BIA
                                                                                Montante, IJ
                                                                               A088 935 213
                           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
    7th day of June, two thousand sixteen.

    PRESENT:
             PETER W. HALL,
             GERARD E. LYNCH,
             DENNY CHIN,
                  Circuit Judges.
    _____________________________________

    MARLO IVON MORALES-ESPANIA,
                  Petitioner,

                      v.                                             14-1838

    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
                  Respondent.
    _____________________________________

    FOR PETITIONER:                      Jose E. Perez, Law Offices of Jose
                                         Perez, P.C., Syracuse, New York.

    FOR RESPONDENT:                      Benjamin C. Mizer, Acting Assistant
                                         Attorney General; Jesse M. Bless,
                                         Senior Litigation Counsel; Lauren E.
                                         Fascett, 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

GRANTED in part and DISMISSED in part.

      Petitioner    Marlo   Ivon    Morales-Espania,     a   native   and

citizen of Guatemala, seeks review of a June 13, 2014, decision

of the BIA affirming a December 6, 2012, decision of an

Immigration Judge (“IJ”) denying Morales-Espania’s application

for asylum, withholding of removal, and relief under the

Convention    Against    Torture     (“CAT”).      In   re   Marlo    Ivon

Morales-Espania, No. A088 935 213 (B.I.A. June 13, 2014), aff’g

No. A088 935 213 (Immig. Ct. Buffalo Dec. 6, 2012).            We assume

the   parties’     familiarity     with   the   underlying    facts   and

procedural history in this case.

      Under the circumstances of this case, we have reviewed the

IJ’s decision, including the portions not explicitly discussed

by the BIA.      Yun-Zui Guan v. Gonzales, 

, 394 (2d

Cir. 2005).       The applicable standards of review are well


                                    2
established.       See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin

Weng v. Holder, 

, 513 (2d Cir. 2009).

Asylum and CAT Relief

      Under 8 U.S.C. § 1252(d)(1), where a petitioner has failed

to raise a category of relief in his brief to the BIA, we are

without jurisdiction to consider any challenge to the denial

of that relief.         Karaj v. Gonzales, 

, 119 (2d Cir.

2006).       Because Morales-Espania did not challenge the IJ’s

denial of either asylum or CAT relief before the BIA, we lack

jurisdiction to review the denial of those forms of relief.

Withholding of Removal

      Adverse Credibility Determination

      For applications such as Morales-Espania’s, governed by

the REAL ID Act of 2005, the agency may, considering the totality

of    the    circumstances,       base   a   credibility     finding   on   an

applicant’s       “demeanor,       candor,     or    responsiveness,”       the

plausibility      of    his     account,     and   inconsistencies     in   his

statements, so long as they reasonably support an inference that

the         applicant      is      not       credible.           8     U.S.C.

§§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); see also Xiu Xia Lin v.

Mukasey, 

, 167 (2d Cir. 2008).               We defer “to an IJ’s
                                         3
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 

.   The substantial evidence standard “requires a certain

minimum level of analysis from the IJ and BIA.”           Delgado v.

Mukasey, 

, 705 (2d Cir. 2007) (internal quotation

omitted).    In this case, the totality of the circumstances does

not reasonably support an inference that Morales-Espania was

not credible; accordingly, substantial evidence does not

support the adverse credibility determination.

    Morales-Espania claimed that he had been persecuted, and

that he feared future persecution, by gang members on account

of his membership in a civic association of businessmen in his

town.       Morales-Espania   testified    that    the   group,   the

Association of Cattlemen and Farmers of Chanmagua (“ASAGACH”

in its Spanish abbreviation), worked with students to prevent

them from using drugs and getting involved with gangs and that

Guatemalan gangs targeted group members because the group

interfered    with   gang   recruitment.     The    IJ   found    that

Morales-Espania was not credible because his “statements

regarding the threats made against his life were vague and
                                 4
conclusory,” he “had difficulty remembering key details in his

testimony, such as the years in which his father and uncle were

killed,” and he “admitted that he previously lied to immigration

officials to obtain an advantageous outcome.”         A.R. 68.   The

IJ,    however,   failed    to        provide   any   examples    of

Morales-Espania’s   vague   and       conclusory   testimony.    See

. A review of the record shows that

Morales-Espania’s testimony regarding the threats he received

was detailed.

      With regard to the death of Morales-Espania’s uncle,

Morales-Espania testified during direct examination that he

could not remember the year his uncle died, and during

cross-examination, which took place a year and a half after

direct examination, he testified that his uncle died in 2001.

During direct examination, Morales-Espania testified that his

father was assassinated in 1995; he was then confronted with

his father’s death certificate, which showed that his father

died in 1994.     Morales-Espania testified that he misspoke

because he had not remembered the exact year his father died.

The only contradiction in Morales-Espania’s testimony is that


                                  5
he stated that his father died in 1995, before correcting

himself.

    Finally, the IJ found Morales-Espania not credible in part

because he “admitted that he previously lied to immigration

officials    to   obtain   an   advantageous   outcome.”   A.R.   68.

Morales-Espania testified that when he first entered the United

States in 2002, he was immediately apprehended by U.S. border

officials.     He told the officials that he was Mexican, as he

was instructed to do by the individuals who smuggled him into

the United States, so that he would be returned to Mexico and

have an easier time crossing the border again.        He testified

that had he thought he was going to be returned to Guatemala,

he would have told the border officials that he was scared to

return.     While an IJ generally may rely on the doctrine falsus

in uno, falsus in omnibus – as the IJ did here to find that

Morales-Espania’s false statement to border officials infected

the entirety of his claim – there are exceptions to that

doctrine.     Siewe v. Gonzales, 

, 170-71 (2d Cir.

2007).     Exceptions exist where false evidence was provided in

a situation relating to escape from persecution or where an

alien talking to U.S. officials may not be entirely forthcoming
                                   6
because of a fear of government authorities in general.           

    exceptions,         the    IJ    found

Morales-Espania’s statement to U.S. border officials to be the

“most   significant[]”    basis     for   the   adverse   credibility

determination.    A.R. 68.

    Moreover, “[f]alse evidence that is wholly ancillary to the

alien’s claim may, in some circumstances, be insufficient by

itself to warrant a conclusion that the entirety of the alien’s

uncorroborated material evidence is also false.”           

.      Morales-Espania’s false statement to border

officials is ancillary to his claim that he fears harm from gang

members in Guatemala.     This single false statement, together

with one other very minor inconsistency, is insufficient to

sustain an adverse credibility determination.         See Xiu Xia 

.

    The    BIA     affirmed   the     IJ’s      adverse   credibility

determination without discussing any of the specific reasons

the IJ cited in support of its conclusion that Morales-Espania

was not credible.    Instead, the BIA impermissibly engaged in

fact-finding and relied on inconsistencies that the IJ did not

mention or consider.     See Weinong Lin v. Holder, 

,
                                  7
247 (2d Cir. 2014) (observing that “the BIA has no power to find

facts”); 8 C.F.R. § 1003.1(d)(3)(i), (iv).             The BIA found that

certain   details    of   Morales-Espania’s          testimony     regarding

threats from gangs and car accidents allegedly caused by cut

brake lines were inconsistent with testimony from his sister

and   brother-in-law.         The    IJ       made    no   such     finding.

Accordingly,   the     BIA   erred       in   engaging     in    independent

fact-finding    and,      considering         the     totality      of   the

circumstances, the credibility finding is unsupported by

substantial evidence.

      Particular Social Group

      The agency concluded in the alternative that even if

Morales-Espania was credible, he did not establish that he was

a member of a particular social group within the meaning of the

immigration statute.      The agency omitted considering certain

evidence in reaching its conclusion.             Morales-Espania stated

that Guatemalan gang members threatened and attempted to harm

him because of his membership in ASAGACH, an incorporated

organization with bylaws and board members.                     While the IJ

acknowledged Morales-Espania’s defined group, he did not

analyze whether this group was a particular social group within
                                     8
the   meaning    of   the    Act.   Instead,     he   determined   that

Morales-Espania’s membership was “incidental to his family’s

status    as    relatively    well-off   merchants”    and    concluded

generally that neither “affluent Guatemalans” nor “shared

opposition to gang violence” constitute a particular social

group.    A.R. 69.

      Similarly, the BIA concluded that Morales-Espania did not

“sufficiently demonstrate that the business people associated

with farmers and ranchers, who also provide support for the

poor, are perceived, considered, or recognized by Guatemalan

society to be a distinct social group.”          A.R. 5.     The BIA did

not specifically address the significance of Morales-Espania’s

particular organization nor did it discuss whether members of

that particular organization are perceived as socially distinct

within the town in which it operates.          See Matter of W-G-R-,

26 I&N Dec. 208, 217-18 (B.I.A. 2014); see also Paloka v. Holder,

, 195-97 (2d Cir. 2014).

      The agency additionally concluded that Morales-Espania had

not shown a nexus between any harm he suffered and his group

membership.      This finding is also infected by the agency’s

failure   to    consider     Morales-Espania’s    actual     group:   to
                                    9
determine whether an applicant was harmed on account of his

membership in a particular social group, the agency must first

correctly identify the group to which the applicant belongs.

Matter of W-G-R-, 26 I&N Dec. at 223-24.            This finding is

further     infected   by   the    agency’s   failure     to   consider

Morales-Espania’s testimony.            Although the agency’s nexus

finding is cast as an alternative to the adverse credibility

determination, the agency failed to credit, or even mention,

Morales-Espania’s testimony that members of ASAGACH were

sometimes    threatened     by    gangs,   that   gangs    wanted   the

organization to cease to exist, that his father and uncle were

killed for belonging to the organization, and that he was

personally threatened with death if he did not leave the

organization.

    For the foregoing reasons, the petition for review is

GRANTED with regard to withholding of removal and the case is

remanded to the agency.     The petition is DISMISSED with regard

to Morales-Espania’s claims for asylum and CAT relief.

                                  FOR THE COURT:
                                  Catherine O=Hagan Wolfe, Clerk



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