     14-2845
     Ramirez Bayona v. Lynch
                                                                                       BIA
                                                                                Montante, IJ
                                                                               A099 320 137
                           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   22nd day of February, two thousand sixteen.
 5
 6   PRESENT:
 7            REENA RAGGI,
 8            DEBRA ANN LIVINGSTON,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   SALVADOR ALEXANDER RAMIREZ BAYONA,
14            Petitioner,
15
16                    v.                                             14-2845
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Anthony Guidice, Fairport, NY.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; Ernesto
27                                       H. Molina, Jr., Assistant Director;
28                                       Gladys M. Steffens Guzmán, Trial
29                                       Attorney, Office of Immigration
30                                       Litigation, United States
31                                       Department of Justice, Washington,
32                                       D.C.
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 is

4    DENIED.

5         Petitioner Salvador Alexander Ramirez Bayona, a native and

6    citizen of El Salvador, seeks review of a July 23, 2014 decision

7    of the BIA affirming an October 15, 2012 decision of an

8    Immigration Judge (“IJ”) denying Bayona’s application for

9    asylum, withholding of removal, and relief under the Convention

10   Against Torture (“CAT”).     In re Salvador Alexander Ramirez

11   Bayona, No. A099 320 137 (B.I.A. July 23, 2014), aff’g No. A099

12   320 137 (Immig. Ct. Buffalo Oct. 15, 2012).      We assume the

13   parties’ familiarity with the underlying facts and procedural

14   history in this case.

15        We have reviewed both the IJ’s and the BIA’s opinions “for

16   the sake of completeness.”   Wangchuck v. DHS, 448 F.3d 524, 528

17   (2d Cir. 2006).   The applicable standards of review are well

18   established.   See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

19   Holder, 562 F.3d 510, 513 (2d Cir. 2009).

20   I.   Asylum and Withholding of Removal

21        The Government argues that Bayona failed to challenge
                                    2
1    either the adverse credibility determination or the serious

2    nonpolitical crime ruling before the BIA.              We “may review a

3    final order of removal only if . . . the alien has exhausted

4    all administrative remedies available to the alien as of right.”

5    8 U.S.C. § 1252(d)(1).     We agree that Bayona made no argument

6    concerning the adverse credibility determination and that issue

7    is therefore unexhausted and not subject to review.             See Foster

8    v. U.S. INS, 376 F.3d 75, 78 (2d Cir. 2004).          Because the adverse

9    credibility determination is dispositive of Bayona’s claims for

10   asylum and withholding of removal, we decline to address whether

11   Bayona   exhausted   any   challenge   to       the    agency’s   serious

12   nonpolitical crimes finding.     INS v. Bagamasbad, 429 U.S. 24,

13   25 (1976).

14   II. CAT Relief

15        Bayona argues that the IJ improperly relied on the adverse

16   credibility determination in denying CAT relief.              Although the

17   agency must consider objective evidence in adjudicating CAT

18   claims, the agency may deny CAT relief based on an adverse

19   credibility     determination   when      the    CAT     claim    is   not

20   “analytically    distinct”   from   the    claims       for   asylum   and


                                     3
1    withholding of removal.    Xue Hong Yang v. U.S. Dep’t of Justice,

2    426 F.3d 520, 523 (2d Cir. 2005).

3         Here, Bayona’s CAT claim was not analytically distinct from

4    his asylum and withholding claims.         The basis for all three

5    claims was the same: he left MS-13 without permission and would

6    therefore be killed if he returned to El Salvador.      The IJ found

7    these factual allegations not credible based, in part, on

8    Bayona’s inconsistent testimony concerning whether he left

9    MS-13, what he did after he left, and why he was able to avoid

10   getting the required MS-13 tattoo even though he was forced to

11   commit rapes and murders.          Under these circumstances, the

12   unchallenged adverse credibility determination is dispositive

13   of the CAT claim.    Id.

14        For the foregoing reasons, the petition for review is

15   DENIED.   As we have completed our review, any pending motion

16   for a stay of removal in this petition is DISMISSED as moot.

17   Any pending request for oral argument in this petition is DENIED

18   in   accordance   with   Federal    Rule   of   Appellate   Procedure

19   34(a)(2), and Second Circuit Local Rule 34.1(b).

20                                  FOR THE COURT:
21                                  Catherine O=Hagan Wolfe, Clerk

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