     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




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