     16-330
     Hernandez v. Sessions
                                                                                       BIA
                                                                                  Wright, IJ
                                                                               A200 236 433

                             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   7th day of March, two thousand seventeen.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            RICHARD C. WESLEY,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   MARIA SUYAPA HERNANDEZ,
14            Petitioner,
15
16                     v.                                            16-330
17                                                                   NAC
18   JEFFERSON B. SESSIONS, III, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent.*
21   _____________________________________
22
23   FOR PETITIONER:                     Bruno Joseph Bembi, Hempstead, NY.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; Mary


     * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
     General Jefferson B. Sessions, III, is automatically substituted for
     former Attorney General Loretta E. Lynch as Respondent.
1                                   Jane Candaux, Assistant Director;
2                                   Aimee J. Carmichael, Trial Attorney,
3                                   Office of Immigration Litigation,
4                                   United States Department of Justice,
5                                   Washington, DC.
6
7          UPON DUE CONSIDERATION of this petition for review of a

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

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

10   DENIED.

11         Petitioner Maria Suyapa Hernandez, a native and citizen of

12   Honduras, seeks review of a January 11, 2016, decision of the

13   BIA, affirming a December 16, 2014, decision of an Immigration

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

15   under the Convention Against Torture (“CAT”).             In re Maria

16   Suyapa Hernandez, No. A200 236 433 (B.I.A. Jan. 11, 2016), aff’g

17   No. A200 236 433 (Immig. Ct. N.Y.C. Dec. 16, 2014).         We assume

18   the   parties’   familiarity    with   the   underlying    facts   and

19   procedural history in this case.

20         Under the circumstances of this case, we have reviewed the

21   IJ’s decision as modified by the BIA, that is, minus the bases

22   for denying relief that were not considered by the BIA.            Yang

23   v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).

24   Accordingly, we do not address the IJ’s conclusion that

25   Hernandez’s asylum application was untimely, which the BIA did

                                       2
1    not rely on.   Id.   The applicable standards of review are well

2    established.    See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.

3    Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).

 4             Considering      the    totality    of    the
 5             circumstances, and all relevant factors, a
 6             trier of fact may base a credibility
 7             determination on . . . the inherent
 8             plausibility of the applicant’s . . .
 9             account, the consistency between the
10             applicant’s . . . written and oral statements
11             . . . , the internal consistency of each such
12             statement, [and] the consistency of such
13             statements with other evidence of record .
14             .   .    without   regard   to   whether   an
15             inconsistency, inaccuracy, or falsehood
16             goes to the heart of the applicant’s claim,
17             or any other relevant factor.
18
19   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.

20   Substantial evidence supports the agency’s determination that

21   Hernandez was not credible as to her claim that her former

22   partner threatened to kill her and abused her daughter.

23        The agency reasonably relied on Hernandez’s inconsistent

24   statements regarding her partner’s threat to kill her.       See

25   8 U.S.C. § 1158(b)(1)(B)(iii).      In her written statement,

26   Hernandez claimed that her partner threatened to kill her when

27   she accused him of molesting her daughter, but she testified

28   inconsistently that she never confronted him about the abuse.

29   Furthermore, when asked to explain why her partner threatened

30   to kill her (if not a result of a confrontation about the alleged
                                     3
1    abuse), Hernandez could not say what they were arguing about,

2    but rather avoided answering the question.

3         The agency also reasonably relied on Hernandez’s omission

4    from her written statement of her claims that her partner

5    threatened to behead her and raped her multiple times.        See

6    8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d

7    at 166-67 & n.3 (“An inconsistency and an omission are . . .

8    functionally equivalent.”).    The agency also did not err in

9    finding Hernandez’s testimony inconsistent with her border

10   interview.    She testified that she told U.S. immigration

11   officials at the border that she was afraid to return to

12   Honduras, but the record of that sworn statement, which bore

13   the hallmarks of reliability, reflected that she stated she had

14   no   fear    of   returning   to       Honduras.   See   8 U.S.C.

15   § 1158(b)(1)(B)(iii); Zhang v. Holder, 585 F.3d 715, 721-22 (2d

16   Cir. 2009) (recognizing that interview record “bears hallmarks

17   of accuracy and reliability” when it contains “a verbatim

18   account or transcript[,] . . . was conducted in a manner designed

19   to elicit the details of an asylum claim[,] . . . and . . .

20   contains no indication that the alien was reluctant to reveal

21   information or did not understand” (internal quotation marks

22   and citations omitted)).      Hernandez did not compellingly

                                        4
1    explain any of the record inconsistencies.              See Majidi v.

2    Gonzales, 430 F.3d 77, 80 (2d Cir. 2005).

3        Having   questioned     Hernandez’s        credibility,    the   IJ

4    reasonably   relied    further       on   Hernandez’s      failure   to

5    rehabilitate her testimony with any evidence corroborating her

6    claim.   “An applicant’s failure to corroborate his or her

7    testimony may bear on credibility, because the absence of

8    corroboration   in    general   makes     an   applicant    unable   to

9    rehabilitate testimony that has already been called into

10   question.”   Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.

11   2007).   The agency was not compelled to credit Hernandez’s

12   explanation that her daughter who lives in the United States

13   could not testify because she is also in removal proceedings,

14   particularly as the explanation did not account for the absence

15   of a written statement.    Cf. Yan Juan Chen v. Holder, 658 F.3d

16   246, 253 (2d Cir. 2011) (holding that a reasonable fact finder

17   is not compelled to conclude that a spouse is unavailable to

18   testify based on fear of arrest due to unlawful status).

19   Moreover, the IJ was not required to give Hernandez additional

20   time to obtain corroborating statements or to explain why the

21   missing evidence was not reasonably available.              See Liu v.




                                      5
1    Holder, 575 F.3d 193, 196-97 (2d Cir. 2009); Diallo v. Gonzales,

2    445 F.3d 624, 633-34 (2d Cir. 2006).

3        Given the inconsistency and lack of corroboration

4    findings, the agency’s adverse credibility determination is

5    supported by substantial evidence.    8 U.S.C.

6    § 1158(b)(1)(B)(iii).    That determination is dispositive of

7    asylum, withholding of removal, and CAT relief because all three

8    claims are based on the same factual predicate.     See Paul v.

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

10       There is no merit to Hernandez’s argument that the BIA

11   should have found the Government in default and ruled in her

12   favor based on the Government’s decision not to file a brief

13   on appeal to the BIA.    The Government was permitted to file a

14   response brief to Hernandez’s brief on appeal, but it was not

15   required to do so.   See BIA Practice Manual § 4.6(f) (“When the

16   appealing party files an appeal brief, the other party may file

17   a ‘response brief.’”).

18       For the foregoing reasons, the petition for review is

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

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

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

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

                                     6
1   in this petition is DENIED in accordance with Federal Rule of

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

3   34.1(b).

4                               FOR THE COURT:
5                               Catherine O’Hagan Wolfe, Clerk




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