Filed: Jul. 15, 2019
Latest Update: Mar. 03, 2020
Summary: 18-196 Gabriel-Lopez v. Barr BIA Ruehle, IJ A208 179 321/322 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
Summary: 18-196 Gabriel-Lopez v. Barr BIA Ruehle, IJ A208 179 321/322 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..
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18-196
Gabriel-Lopez v. Barr
BIA
Ruehle, IJ
A208 179 321/322
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 15th day of July, two thousand nineteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 JON O. NEWMAN,
10 DENNY CHIN,
11 Circuit Judges.
12 _____________________________________
13
14 ARELI GABRIEL-LOPEZ, LEONARDO
15 LOPEZ-GABRIEL,
16 Petitioners,
17
18 v. 18-196
19 NAC
20 WILLIAM P. BARR, UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONERS: Jose Perez, Law Offices of Jose
26 Perez, P.C., Syracuse, NY.
27
28
29 FOR RESPONDENT: Joseph H. Hunt, Assistant
30 Attorney General; Anthony P.
31 Nicastro, Assistant Director;
32 Linda Y. Cheng, Trial Attorney,
33 Office of Immigration Litigation,
1 United States Department of
2 Justice, Washington, DC.
3
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioners Areli Gabriel-Lopez and her son, Leonardo
9 Lopez-Gabriel, natives and citizens of Guatemala, seek review
10 of a December 18, 2017 decision of the BIA affirming a January
11 27, 2017 decision of an Immigration Judge (“IJ”) denying
12 asylum, withholding of removal, and relief under the
13 Convention Against Torture ("CAT"). In re Areli Gabriel-
14 Lopez, Leonardo Lopez-Gabriel, Nos. A208 179 321/322 (B.I.A.
15 Dec. 18, 2017), aff’g Nos. A208 179 321/322 (Immig. Ct.
16 Buffalo Jan. 27, 2017). We assume the parties’ familiarity
17 with the underlying facts and procedural history in this case.
18 Under the circumstances of this case, we have reviewed
19 the IJ’s decision as modified and supplemented by the
20 BIA. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d
21 Cir. 2005); Xue Hong Yang v. U.S. Dep’t of Justice,
426 F.3d
22 520, 522 (2d Cir. 2005). The applicable standards of review
23 are well established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei
24 Gao v. Sessions,
891 F.3d 67, 76 (2d Cir. 2018) (reviewing
2
1 adverse credibility determination for substantial evidence).
2 “Considering the totality of the circumstances,” a
3 factfinder “may base a credibility determination on . . . the
4 consistency between the applicant’s . . . written and oral
5 statements . . . , the internal consistency of each such
6 statement, [and] the consistency of such statements with
7 other evidence of record.” 8 U.S.C. § 1158(b)(1)(B)(iii);
8 see Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163-64 (2d Cir.
9 2008). “We defer . . . to an IJ’s credibility determination
10 unless, from the totality of the circumstances, it is plain
11 that no reasonable fact-finder could make such an adverse
12 credibility ruling.” Xiu Xia
Lin, 534 F.3d at 167. The
13 agency’s adverse credibility finding is supported by
14 substantial evidence.
15 The agency reasonably relied on multiple inconsistencies
16 in Gabriel-Lopez’s testimony, application, and documentary
17 evidence to support the adverse credibility determination.
18 See 8 U.S.C. § 1158(b)(1)(B)(iii). Gabriel-Lopez was
19 inconsistent about when she fled to Mexico and how long she
20 lived there, whether her former partner had a gun when he
21 looked for her in Mexico, and whether she showed the police
22 an anonymous note she had received. The inconsistencies --
3
1 which go to the heart of Gabriel-Lopez's claim -- were
2 apparent from the record and to the extent that Gabriel-Lopez
3 explained that she was confused, the agency was not compelled
4 to accept that explanation. See Majidi v. Gonzales, 430 F.3d
5 77, 80 (2d Cir. 2005) (“A petitioner must do more than offer
6 a plausible explanation for h[er] inconsistent statements to
7 secure relief; [s]he must demonstrate that a reasonable fact-
8 finder would be compelled to credit h[er] testimony.”
9 (internal quotation marks omitted)).
10 Having questioned Gabriel-Lopez’s credibility, the
11 agency reasonably relied on her failure to rehabilitate her
12 testimony with reliable corroborating evidence. See Biao
13 Yang v. Gonzales,
496 F.3d 268, 273 (2d Cir. 2007) (“An
14 applicant’s failure to corroborate his or her testimony may
15 bear on credibility, because the absence of corroboration in
16 general makes an applicant unable to rehabilitate testimony
17 that has already been called into question.”). First, the
18 agency reasonably concluded that the statement from Gabriel-
19 Lopez’s mother was from an interested party not subject to
20 cross-examination and that it contradicted Gabriel-Lopez’s
21 testimony regarding whether she received threats when she
22 returned to Guatemala. See Y.C. v. Holder,
741 F.3d 324, 334
4
1 (2d Cir. 2013) (holding that “[w]e defer to the agency's
2 determination of the weight afforded to an alien’s
3 documentary evidence” and deferring to agency’s decision to
4 afford little weight to spouse’s letter because it was unsworn
5 and from an interested witness). Second, the agency was not
6 required to credit the complaint Gabriel-Lopez allegedly
7 filed with the police because of her inconsistent
8 descriptions of the document. See Y.C., 741 F.3d at 332.
9 Third, the agency reasonably relied on the fact that Gabriel-
10 Lopez failed to submit evidence of her alleged relationship
11 with her former partner despite her testimony that they had
12 cohabitated for a year.1 See Biao
Yang, 496 F.3d at 273.
13 Given the inconsistencies identified by the agency and
14 the lack of reliable corroboration, we conclude that the
15 adverse credibility determination is supported by substantial
16 evidence. See Xiu Xia
Lin, 534 F.3d at 165-66. That
1 We note that the agency erred in requiring evidence of Gabriel-
Lopez’s son’s paternity because she testified that her partner
refused to acknowledge paternity at the time of their son’s birth
and was never involved in his life. See Cao He Lin v. U.S. Dep’t
of Justice, 428 F.3d 391, 404 (2d Cir. 2005) (finding it
unreasonable to expect a document from an alleged persecutor).
Given the other bases for the agency's decision, however, we
conclude that remand is not warranted. See Hong Fei Gao, 891 F.3d
at 82 (noting that remand is warranted in cases where “we cannot
confidently predict” that the IJ would have reached same decision).
5
1 determination is dispositive of asylum, withholding of
2 removal, and CAT relief because all three claims are based on
3 the same factual predicate. See Paul v. Gonzales, 444 F.3d
4 148, 156-57 (2d Cir. 2006).
5 For the foregoing reasons, the petition for review is
6 DENIED. As we have completed our review, any stay of removal
7 that the Court previously granted in this petition is VACATED,
8 and any pending motion for a stay of removal in this petition
9 is DISMISSED as moot. Any pending request for oral argument
10 in this petition is DENIED in accordance with Federal Rule of
11 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
12 34.1(b).
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe,
15 Clerk of Court
6
