     14-1408
     Lararayo v. Lynch
                                                                                       BIA
                                                                                  Cheng, IJ
                                                                               A088 437 328
                              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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   27th day of August, two thousand fifteen.
 5
 6   PRESENT:
 7            REENA RAGGI,
 8            DEBRA ANN LIVINGSTON,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   JERONIMO R. LARARAYO, AKA JERONIMO
14   LARA,
15             Petitioner,
16
17                       v.                                          14-1408
18                                                                   NAC
19
20   LORETTA E. LYNCH,* UNITED STATES
21   ATTORNEY GENERAL,
22            Respondent.
23   _____________________________________
24
25


     *  Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
     General Loretta E. Lynch is automatically substituted for former
     Attorney General Eric H. Holder, Jr.
 1   FOR PETITIONER:               Visuvanathan Rudrakumaran, Law
 2                                 Offices of Visuvanathan
 3                                 Rudrakumaran, New York, New York.
 4
 5   FOR RESPONDENT:               Joyce R. Branda, Acting Assistant
 6                                 Attorney General; Ernesto H.
 7                                 Molina,Jr., Assistant Director;
 8                                 Andrew N. O’Malley, Trial Attorney,
 9                                 Office of Immigration Litigation,
10                                 United States Department of Justice,
11                                 Washington, D.C.
12
13       UPON DUE CONSIDERATION of this petition for review of a

14   Board of Immigration Appeals (“BIA”) decision, it is hereby

15   ORDERED, ADJUDGED, AND DECREED that the petition for review is

16   DENIED.

17       Petitioner Jeronimo R. Lararayo, a native and citizen of

18   Mexico, seeks review of an April 2, 2014, decision of the BIA

19   affirming a January 5, 2012, decision of an Immigration Judge

20   (“IJ”) denying Lararayo’s application for asylum, withholding

21   of removal, and relief under the Convention Against Torture

22   (“CAT”).    In re Jeronimo R. Lararayo, No. A088 437 328 (B.I.A.

23   Apr. 2, 2014), aff’g No. A088 437 328 (Immig. Ct. N.Y. City Jan.

24   5, 2012).      We assume the parties’ familiarity with the

25   underlying facts and procedural history in this case.

26       Under the circumstances of this case, we review both the

27   BIA and the IJ’s decisions.    Yun-Zui Guan v. Gonzales, 432 F.3d
                                      2
1    391, 394 (2d Cir. 2005) (per curiam).    The applicable standards

2    of review are well established.     See 8 U.S.C. § 1252(b)(4)(B);

3    Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per

4    curiam).

5    I.   Asylum

6         An alien must demonstrate by clear and convincing evidence

7    that his application for asylum was filed within one year of

8    his arrival in the United States.       8 U.S.C. § 1158(a)(2)(B).

9    However, an untimely filing may be excused if the applicant

10   “demonstrates . . . the existence of changed circumstances which

11   materially affect the applicant’s eligibility for asylum.”

12   Id. § 1158(a)(2)(D).   Pursuant to 8 U.S.C. § 1158(a)(3), we

13   lack jurisdiction to review the agency’s determination that an

14   asylum application is untimely, but retain jurisdiction to

15   review constitutional claims and questions of law.           Id.

16   § 1252(a)(2)(D); see Xia Ji Chen v. U.S. Dep’t of Justice, 471

17   F.3d 315, 329 (2d Cir. 2006).

18        Lararayo argues that the agency committed legal error by

19   refusing to consider his argument that an increase in cartel

20   violence   around   2009   constitutes    changed   circumstances

21   excusing his untimely filing.     This argument raises a question
                                     3
1    of law over which we retain jurisdiction.             Shi Jie Ge v. Holder,

2    588 F.3d 90, 94-95 (2d Cir. 2009).            However, the IJ considered

3    whether any changed circumstances excused Lararayo’s untimely

4    application, explaining at length that his varying explanations

5    were inconsistent with one another and were insufficient to

6    excuse his delay even after conditions in the relevant region

7    of Mexico allegedly deteriorated.

8    II. Withholding of Removal and CAT Relief

9        For asylum applications like Lararayo’s, governed by the

10   REAL ID Act, the agency may, “[c]onsidering the totality of the

11   circumstances . . . base a credibility determination on the

12   demeanor,     candor,   or    responsiveness      of    the   applicant   or

13   witness, the inherent plausibility of the applicant’s or

14   witness’s account,” and inconsistencies in an applicant’s

15   statements    and   other     record       evidence   “without   regard   to

16   whether” they go “to the heart of the applicant’s claim.”

17   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 166-67.

18   Here,   the   agency’s       adverse   credibility      determination     is

19   supported by substantial evidence.

20       The IJ reasonably relied on Lararayo’s inability to testify

21   in any detail about his activities as a police officer.               This
                                            4
1    was   a     reasonable     basis      for     an   adverse     credibility

2    determination, as Lararayo’s past employment was the basis for

3    his claims for relief.         Zhou Yun Zhang v. INS, 386 F.3d 66, 74

4    (2d Cir. 2004), overruled on other grounds by Shi Liang Lin v.

5    U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007) (en banc).

6          Lararayo presented proof that both he and his brother were

7    police    officers,      but    the   documents     he    submitted   were

8    substantially different from one another.                The IJ reasonably

9    relied on this inconsistency and was not required to credit

10   Lararayo’s explanation for it.            Zhou Yun Zhang, 386 F.3d at 74;

11   Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).

12   Moreover, the IJ reasonably found that Lararayo’s credibility

13   was undermined by his failure to further corroborate his claim

14   that he was a police officer.         Biao Yang v. Gonzales, 496 F.3d

15   268, 273 (2d Cir. 2007) (per curiam).

16         Finally, the IJ reasonably relied on her observations of

17   Lararayo’s evasive and nonresponsive answers to questions

18   related to the discrepancies between his statements.                  This

19   Court grants “particular deference” to the IJ’s demeanor

20   findings.    Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113

21   (2d Cir. 2005).
                                           5
1        Considering     the   foregoing,   the    “totality   of   the

2    circumstances”    supports    the   IJ’s     adverse   credibility

3    determination.    Xiu Xia Lin, 534 F.3d at 167.   This finding was

4    sufficient to deny withholding of removal and CAT relief, as

5    both forms of relief relied on the same factual predicate.     See

6    Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).        Because

7    the adverse credibility determination is dispositive, we do not

8    reach Lararayo’s additional arguments concerning burden of

9    proof.

10       For the foregoing reasons, the petition for review is

11   DENIED.    As we have completed our review, any stay of removal

12   that the Court previously granted in this petition is VACATED,

13   and any pending motion for a stay of removal in this petition

14   is DISMISSED as moot.     Any pending request for oral argument

15   in this petition is DENIED in accordance with Federal Rule of

16   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

17   34.1(b).

18                                 FOR THE COURT:
19                                 Catherine O=Hagan Wolfe, Clerk




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