     18-195
     Gamarro Meneses v. Barr
                                                                                  BIA
                                                                             Ruehle, IJ
                                                                          A201 217 060

                               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 21st day of October, two thousand nineteen.
 5
 6   PRESENT:
 7            ROBERT A. KATZMANN,
 8                 Chief Judge,
 9            RAYMOND J. LOHIER, JR.,
10            RICHARD J. SULLIVAN,
11                 Circuit Judges.
12   _____________________________________
13
14   SAUL GAMARRO MENESES,
15        Petitioner,
16
17                    v.                                         18-195
18                                                               NAC
19   WILLIAM P. BARR, UNITED STATES
20   ATTORNEY GENERAL,
21        Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                      Jose Perez, Law Offices of Jose
25                                        Perez, P.C., Syracuse, NY.
26
27   FOR RESPONDENT:                      Joseph H. Hunt, Assistant
28                                        Attorney General; Justin Markel,
29                                        Senior Litigation Counsel;
30                                        Virginia Lum, Attorney, Office of
31                                        Immigration Litigation, United
32                                        States Department of Justice,
33                                        Washington, DC.
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 DENIED.

5          Petitioner Saul Gamarro Meneses, a native and citizen of

6    Guatemala, seeks review of a December 21, 2017, decision of

7    the BIA affirming a March 10, 2017, decision of an Immigration

8    Judge (“IJ”) denying asylum, withholding of removal, and

 9   relief under the Convention Against Torture (“CAT”).      In re

10   Saul Gamarro Meneses, No. A201 217 060 (B.I.A. Dec. 21, 2017),

11   aff’g No. A201 217 060 (Immig. Ct. Buffalo Mar. 10, 2017).

12   We assume the parties’ familiarity with the underlying facts

13   and procedural history in this case.

14         We have reviewed both the IJ’s and the BIA’s decisions

15   “for the sake of completeness.”        Wangchuck v. Dep’t of

16   Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006).     We review

17   the    agency’s   adverse   credibility   determination     for

18   substantial evidence.   See 8 U.S.C. § 1252(b)(4)(B); Hong Fei

19   Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018).   “Considering

20   the totality of the circumstances, and all relevant factors,

21   a trier of fact may base a credibility determination on the

22   demeanor, candor, or responsiveness of the applicant . . . ,

23   the consistency between the applicant’s . . . written and

24   oral statements . . . , the internal consistency of each such
                                    2
1    statement, [and] the consistency of such statements with

2    other evidence of record . . . without regard to whether an

3    inconsistency, inaccuracy, or falsehood goes to the heart of

4    the applicant’s claim, or any other relevant factor.”             8

5    U.S.C. § 1158(b)(1)(B)(iii).         “We defer . . . to an IJ’s

6    credibility determination unless, from the totality of the

7    circumstances, it is plain that no reasonable fact-finder

8    could make such an adverse credibility ruling.”        Xiu Xia Lin

9    v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei

10   Gao, 891 F.3d at 76.   The multiple inconsistencies in Gamarro

11   Meneses’s statements regarding the basis for the alleged

12   persecution   and   the    incidents     of   past   harm   provide

13   substantial evidence for the agency’s adverse credibility

14   determination.

15       Gamarro Meneses alleged persecution by the Guatemalan

16   government, specifically that the government colluded with

17   drug traffickers and seized land from him or his community to

18   build an airstrip.        Gamarro Meneses’s testimony, written

19   statements, and documentary evidence were inconsistent as to

20   whether he owned the disputed land or whether his employees

21   or a community owned it, and as to who seized the land and

22   for what purpose.   These inconsistencies called into question

23   the central tenet of his claim and support the agency’s

24   adverse credibility determination.       See Xian Tuan Ye v. Dep’t
                                      3
1    of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006) (holding

2    that a material inconsistency regarding the basis of an

3    applicant’s asylum claim is substantial evidence of adverse

4    credibility).     Gamarro Meneses did not provide a compelling

5    explanation for these discrepancies.            See Majidi v. Gonzales,

6    430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more

7    than offer a plausible explanation for . . . inconsistent

8    statements to secure relief; he must demonstrate that a

9    reasonable    fact-finder   would       be   compelled    to    credit    his

10   testimony.” (internal quotations omitted)).

11          Moreover, the agency did not err in relying on Gamarro

12   Meneses’s failure to testify about all the incidents of past

13   harm.    He told immigration officials that he was attacked in

14   2007 and accused of possessing a bomb, that his son was

15   kidnapped, and that he was shot at three times.                      But he

16   testified about none of these.          The agency reasonably relied

17   on   these   omissions   given   the         severity    of    the   alleged

18   incidents.      See Hong Fei Gao, 891 F.3d at 78-79 (“[I]n

19   assessing the probative value of the omission of certain

20   facts, an IJ should consider whether those facts are ones

21   that    a   credible   petitioner       would   reasonably      have     been

22   expected to disclose under the relevant circumstances.”).

23   The IJ was not required to accept Gamarro Meneses’s testimony

24   that he initially forgot one time he was shot at, given the
                                         4
1    significance of such an event to his claim.                See Majidi, 430

2    F.3d at 80–81.

3        The agency also reasonably relied on Gamarro Meneses’s

4    conflicting    accounts     of   his       abandonment   of   his   Canadian

5    asylum application and whether he returned to Guatemala since

6    fleeing for his life in 2008.              See Xiu Xia Lin, 534 F.3d at

7    167 (“[A]n IJ may rely on any inconsistency . . . in making

8    an adverse credibility determination as long as the ‘totality

9    of the circumstances’ establishes that an asylum applicant is

10   not credible.” (quoting 8 U.S.C. § 1158(b)(1)(B)(iii))).

11       Having     questioned    Gamarro        Meneses’s    credibility,      the

12   agency reasonably relied on his failure to rehabilitate his

13   testimony     with   reliable     corroborating          evidence.         “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.”                  Biao Yang v.

18   Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).              As the IJ found,

19   Gamarro Meneses’s documents did not list him as the landowner,

20   and he failed to produce documents he allegedly had to

21   corroborate his alleged complaints or cooperation with U.S.

22   authorities.

23       Given     the    inconsistencies,         omissions,      and   lack    of

24   reliable corroboration, the adverse credibility determination
                                            5
1    is   supported   by   substantial   evidence.   See   8   U.S.C.

2    § 1158(b)(1)(B)(iii).    That determination is dispositive of

3    asylum, withholding of removal, and CAT relief because all

4    three claims were based on the same factual predicate.       See

5    Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

6         For the foregoing reasons, the petition for review is

7    DENIED.    All pending motions are hereby DENIED and stays are

8    VACATED.

 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe,
11                                 Clerk of Court




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